MB9-29371

RAD File No. / No de dossier de la SAR : MB9-29371 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, Quebec Appel instruit / entendu à Date of decision December 22, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Guffy Mushigo 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, a citizen of Senegal, is appealing the decision of the Refugee Protection Division (RPD) to reject her refugee protection claim. [2] In rendering its decision, the panel took into account the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution. [3] For the reasons that follow, the Refugee Appeal Division (RAD) allows the appeal and refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [4] In her Basis of Claim Form, the appellant alleges that she fears a man named XXXX XXXX in Senegal, who is a distant cousin of her father and who holds her responsible for her sister coming to Canada, when their father had promised her to him in marriage. [5] The appellant alleges that XXXX began threatening her in XXXX 2018 after she returned from a trip to Canada to visit her sister. She alleges that she was brutalized and injured on XXXX XXXX, 2018, in an altercation between XXXX and the members of her family. [6] On XXXX XXXX XXXX 2018, she left Senegal for Canada, where she claimed refugee protection. [7] Following a hearing held before the RPD on November 7, 2019, the RPD rejected the refugee protection claim on the grounds that the appellant did not demonstrate that state protection in Senegal was not adequate in her case. Before the RAD, the appellant submits that the RPD erred in its assessment of state protection for reasons that will be addressed in detail under the heading Analysis, as needed. [8] For these reasons, the appellant is asking the RAD to set aside the determination of the RPD and grant her refugee protection, or to refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [9] The role of the RAD is to review RPD decisions by applying the correctness standard of review after carrying out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. ANALYSIS [10] The issue to be determined in this case is whether the RPD erred in its assessment of the Senegalese state protection available to the appellant. [11] In my opinion, after analyzing the evidence presented, the answer to this question is yes, for the reasons that follow. [12] The RPD's decision regarding state protection is based on the following elements. * The appellant knows her aggressor and did not file a complaint against him with the police. * Her explanation that her aggressor is powerful and influential is not plausible, because he threatened to kill the appellant if she filed a complaint against him, thus demonstrating that he feared the authorities. * The documentary evidence indicates that the Senegalese state has not collapsed and that it has a police force and judiciary that are able to adequately protect its citizens. * The appellant did not demonstrate, with clear and convincing evidence, that the state cannot provide her with adequate protection or is unwilling to do so. [13] In her memorandum, the appellant reiterates the jurisprudential principles relating to the issue of state protection and cites excerpts from the documentary evidence, according to which the Senegalese authorities rarely intervene in family conflicts. [14] In Tab 2.11 of the Immigration and Refugee Board of Canada's (IRB) most recent National Documentation Package (NDP) on Senegal (May 29, 2020), and as cited by the RPD, the US Department of State's annual report on human rights in Senegal in 2019 states that this country is a republic where the government was elected in elections considered to be free and fair. Civilian authorities generally maintain control over the country's security forces. [15] However, it also states, on pages 14 and 15 of the document, that although there are laws punishing rape and abuse of women, the authorities do not enforce the law, particularly when violence occurs within the family. Police usually do not intervene in domestic disputes. [16] In Tab 5.22 of the IRB's same NDP on Senegal, at paragraph 27 of the report, the United Nations Human Rights Council's Working Group states that: During the visit, the Working Group observed that access to justice is particularly problematic for women victims of violence. The fear of stigmatization and reprisals, the cost of proceedings, rural isolation, the difficulty of gathering the necessary evidence, the scarcity of women in the police force and the prevalence of inadequately trained staff members are all factors that prevent women from filing a complaint. When they do file a complaint, investigations are not always initiated. It is furthermore inadmissible that women should have to pay to obtain a medical certificate in cases of sexual violence. When assailants are arrested and convicted, the dysfunctional nature of the justice system is such that offenders manage to get away without completing their sentences. The entire judicial system must come together to fight impunity. The Working Group welcomes the establishment of community counselling centres - a positive initiative that engages local communities in the prevention of violence - but is concerned by the tendency to resort to mediation in cases that should be referred to the criminal court. [17] I am of the opinion that the RPD erred in failing to take into account this part of the evidence on the record. This is evidence demonstrating that concrete state protection is not available to women victims of violence in Senegal and, moreover, that the state makes no effort to ensure the protection of women victims of violence. [18] In this case, although this is not domestic violence in its usual sense, that is, between spouses, it is nevertheless a family dispute in its broader sense, namely, that the violence would come from a man, a distant cousin, looking for the appellant's sister. [19] For this reason, I set aside the determination of the RPD and refer the matter to the RPD for re-determination by a differently constituted panel. REMEDY [20] I determine that the RPD's decision is erroneous in fact and in law, and I find that I am unable to correctly assess the appellant's credibility, as well as the question of whether an internal flight alternative is available to her in Senegal, if needed, without reviewing the evidence presented before the RPD. [21] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers the matter to the RPD. [22] The appeal is allowed. (signed) Normand Leduc Normand Leduc December 22, 2020 Date IRB translation Original language: French 1 National Documentation Package (NDP), Senegal, May 29, 2020, Tab 2.1: Senegal. Country Reports on Human Rights Practices for 2019. United States. Department of State. March 11, 2020. 2 NDP, Senegal, May 29, 2020, Tab 5.2: Report of the Working Group on the issue of discrimination against women in law and in practice on its mission to Senegal. United Nations. Human Rights Council. April 7, 2016. A/HRC/32/44/Add.1. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-29371 RAD.25.02 (January 2020) Disponible en français 3 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