MB7-20961

RAD File No. / No de dossier de la SAR : MB7-20961 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 4, 2019 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Me Manuel Antonio Centurion 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) that rejected her refugee protection claim. The appellant submitted that her husband had beaten her several times. She came to Canada to give birth and decided not to return to the DRC. The RPD did not believe that the appellant had been a victim of domestic violence. The appellant criticizes the RPD for not having taken into account the medical evidence of the injuries she sustained when her husband hit her, shortly before her arrival in Canada. I find that the RPD erred in raising the appellant's lack of credibility as a reason not to assign any probative value to this medical evidence. Based on my own analysis of the record, I conclude that the appellant was beaten by her husband at least once and that it is likely that she would be beaten again if she were to return to the DRC. The appellant would not be able to rely on state protection and would not have an internal flight alternative. The appeal is therefore allowed. BACKGROUND [2] According to the appellant, between 2009 and 2017, she suffered domestic abuse at the hands of her husband often and needed medical treatment several times. The most recent incident allegedly occurred in late XXXX 2017, when the appellant was XXXX months pregnant. She maintains that her husband hit her head and that she lost consciousness. She then needed to go to the hospital, where she remained for several days. [3] Shortly after being discharged from the hospital, the appellant left for Canada. She stayed with her half-sister who lived in Montréal. She made this trip to be able to give birth in Canada, which she had agreed upon with her husband before the most recent episode of domestic violence. During that time, her husband remained in the DRC with their other children. [4] The appellant submits that her half-sister urged her to make a claim for refugee protection in Canada after she informed her of the abuse she had suffered at the hands of her husband. The claim was presented on July 20, 2017. The appellant's child was born a little over XXXX XXXX later, on XXXX XXXX. [5] A few days later, the appellant telephoned her husband to inform him of the birth of their child. She explained in her testimony before the RPD that she felt she owed him the information because it was his child. During the same call, the appellant informed her husband that she had made a claim for refugee protection in Canada and did not intend to return to the DRC. He reacted badly to this news and told the appellant that he would come to Canada if necessary to force her to return to the DRC. [6] In its written decision,1 the RPD explains that it did not believe the appellant had been a victim of domestic violence because she had been unable to provide specific details about the nature of the acts committed by her husband during the eight years of cohabitation during which he had allegedly beaten her. The RPD also states that the appellant's act of calling her husband to announce the birth of their child was conduct inconsistent with her alleged fear. [7] In her memorandum of appeal,2 the appellant argues that the RPD should have given more weight to the medical certificate filed in evidence attesting to the injuries she suffered when her husband hit her on the head in XXXX 2017.3 ISSUE [8] In this appeal, the determinative issue is whether the evidence establishes, on a balance of probabilities, that the appellant has suffered domestic violence at the hands of her husband. SCOPE OF THE APPEAL [9] The Refugee Appeal Division (RAD) reviews the RPD's decisions on a standard of correctness after carrying out its own analysis of the record. The exception to that rule applies to the RPD's findings with respect to credibility or the weight to be given to the oral evidence it has heard, cases where it enjoys a meaningful advantage. [10] In this case, I am of the view that the RPD does not enjoy a meaningful advantage with respect to any of its findings. I am therefore applying the standard of correctness only. MERITS OF THE APPEAL [11] Having listened to the full recording of the RPD hearing, I share the RPD's impression that the appellant's testimony was vague in its description of the many incidents of domestic violence she had allegedly suffered since 2009. In her memorandum of appeal, she explained her conduct at the hearing by stating that she had given birth barely XXXX XXXX before and that she had experienced post-partum depression. It is difficult for me to assess the extent to which the appellant's psychological and physical condition the day of the hearing affected her ability to testify. During her hearing she was represented by counsel, who neither requested that the hearing be postponed nor mentioned the appellant's medical condition in his submissions to the panel. [12] However, it was not necessary for the evidence to establish that many incidents of domestic violence had occurred in the eight years during which the appellant lived with her husband. Evidence of a single incident, especially a recent incident, could suffice to establish at least a serious possibility that it might occur again were she to return to her husband in the DRC. Therefore, I agree with the appellant that the evidence of the most recent incident she raises, the one said to have occurred in XXXX 2017, is particularly important, especially because her testimony on this subject, which was not vague, is supported by a medical report prepared by the physician who treated her injuries at the time. [13] I find that the RPD erred in attributing no probative value to the medical report that the appellant filed in evidence. At paragraph 29 of its decision, the RPD attempted to justify this by stating that the medical report was insufficient [translation] "to mitigate the many issues affecting [the appellant's] credibility". However, the probative value of the medical report does not depend on the appellant's credibility. To the extent that the document is genuine, its content must be analyzed. It was not the appellant who authored this report, but rather a physician who diagnosed and treated her injuries. He states that the appellant [translation] "presents with ocular trauma with periorbital ecchymosis and subconjunctival hemorrhage following an episode of domestic violence".4 While it remains possible that the injuries could have had a different cause from that alleged by the appellant, the diagnosis in the medical report clearly suggests domestic abuse as the likely cause of the injuries sustained. [14] This incident alone is sufficiently serious to establish that there is, at the very least, a serious possibility that the appellant would again be subjected to domestic violence at the hands of her husband if she were to return to the DRC. This is persecution based on the appellant's membership in the social group of women within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA). [15] I also find that the RPD erred in stating that the appellant engaged in behaviour that was inconsistent with her alleged fear when she telephoned her husband in XXXX 2017 to tell him about the birth of their child and her intention not to return to the DRC. Located tens of thousands of kilometres away from him in another country, the appellant had no reason to fear that a telephone conversation with her husband was likely to put her in danger. [16] Also, given what is indicated by the documentary evidence in the National Documentation Package (NDP) for the DRC, I find that the appellant would neither be able to avail herself of state protection nor have an internal flight alternative if she were to return to that country. According to a Response to Information Request (RIR) prepared by the Immigration and Refugee Board in 2012,5 the national government's commitment to protecting women from domestic violence is totally insufficient. Justice for victims of domestic violence is difficult to achieve, and a lack of institutional resources or capacity may be a barrier to justice and create a culture of impunity. Also, according to a recent report from the Organisation for Economic Cooperation and Development (OECD),6 violence against women remains endemic owing to discriminatory attitudes towards women, a culture of silence of victims and impunity of perpetrators. It also states that domestic violence is widespread throughout the country. [17] When questioned by the RPD as to whether she might consider settling somewhere other than Kinshasa, where her husband resides, the appellant testified that it would not be possible, as her husband has family throughout the country, which would enable him to locate her easily.7 Nothing in the evidence casts doubt on the legitimacy of this explanation. The appellant has therefore established, in my view, that she has no internal flight alternative in the DRC. CONCLUSION [18] The RPD erred in failing to attribute any probative value to a medical report demonstrating that the appellant had been a victim of domestic violence in 2017. This evidence establishes, on a balance of probabilities, that the appellant would face a serious possibility of further domestic violence from her husband if she were to return to the DRC, without being able to rely on state protection and without an internal flight alternative. Accordingly, the appellant has demonstrated that she faces a serious possibility of persecution based on her membership in the social group of women, within the meaning of section 96 of the IRPA. [19] The appeal is therefore allowed. The RPD's decision is set aside and refugee status is granted to the appellant. (signed) "Philippe Rabot" Philippe Rabot July 4, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, pages 3 to 12. 2 Appeal record, pages 26 to 30. 3 RPD record, page 107, Exhibit P-2. 4 RPD record, Exhibit P-2, page 107. 5 National Documentation Package (Democratic Republic of the Congo), Tab 5.3, Domestic and sexual violence, including legislation, state protection, and services available to victims (2006-March 2012), COD104022.E, Immigration and Refugee Board of Canada, April 17, 2012. 6 Ibid, Tab 5.1, Democratic Republic of Congo. Social Institutions and Gender Index 2019, Organisation for Economic Co-operation and Development, December 7, 2018. 7 Transcript of the RPD hearing, 1:49:10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-20961 RAD.25.02 (September 18, 2018) Disponible en français 6 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 (September 18, 2018) Disponible en français