MB8-01756

RAD File No. / No de dossier de la SAR : MB8-01756 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 Ottawa, ON Appel instruit / entendu à Date of decision March 10, 2020 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person who is the subject of the appeal Jacques Despatis Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre REASONS FOR DECISION OVERVIEW [1] According to the Basis of Claim Form (BOC Form), the appellant, XXXX XXXX XXXX, orphaned at XXXX years of age, was placed in the charge of her paternal uncle when her father died. In XXXX 2014, when she was XXXX years of age, she learned that her uncle had promised her to a colonel who was 30 years her senior in exchange for a significant dowry. Her future husband, known for his violent and angry nature, also demanded that she be circumcised. On XXXX XXXX XXXX 2014, with the help of her mother and brother, the appellant fled Chad for the United States. Fearing deportation, she came to Canada, where she claimed refugee protection on XXXX XXXX XXXX 2016. Accused by her uncle of dishonouring the family, she would fear for her life if she had to return to Chad, and fears being circumcised like the colonel's three other wives and being forced to marry him. [2] On December 12, 2017, the Refugee Protection Division (RPD) rejected the refugee protection claim on the basis that the appellant was not credible. According to the RPD, the appellant's testimony contained inconsistencies, and her profile was not consistent with that of Chadian victims of forced marriage. [3] The appellant is appealing against the decision and argues that the RPD erred in the analysis of her credibility by placing a higher burden of proof on her and by interpreting the documentary evidence on forced marriage too restrictively. Lastly, she argues that the RPD failed to analyze all of the documentary evidence that she filed. [4] The determinative issue for the Refugee Appeal Division (RAD) is the appellant's credibility, particularly with respect to the threat of forced marriage. DETERMINATION [5] The appeal is allowed. I substitute my own determination that the appellant, XXXX XXXX XXXX, is a Convention refugee. ANALYSIS [6] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting an independent analysis of the evidence on the record.1 [7] After conducting my own analysis of the record, which included listening to the recording of the hearing2 and applying the Chairperson's Guideline 4,3 I am of the opinion that the RPD committed fatal errors in the assessment of the appellant's credibility. The Refugee Protection Division erred in its credibility assessment Appellant's profile [8] The RPD's conclusion that the appellant is not credible because she does not have the profile of victims of forced marriage in Chad is erroneous. [9] The documentary evidence indicates that most forced marriages in Chad involve girls who are not yet 18 years of age and that forced marriages are uncommon for adult women.4 [10] In her memorandum, the appellant argues that the RPD placed a higher burden of proof on her by asking her to explain with certainty why she was the exception to the rule, that is, why her uncle did not subject her to a forced marriage when she was younger instead of waiting until she had reached the age of majority. She argues that the RPD erred in drawing conclusions based on the uncle's delay in marrying off the appellant, rather than analyzing her current fear. [11] At the hearing, the RPD asked the appellant several times why her uncle, who adhered to religious precepts, did not comply with the customs relating to forced marriage, in particular why he waited so long to arrange the appellant's marriage. [12] First, the appellant responded that her uncle was no doubt concerned about the fate of his own daughters first, as she was only his niece, as well as an orphan.1 Second, she testified that she did not have any suitors. However, her responses did not satisfy the RPD, which continued to question the appellant about her uncle's intentions and actions in relation to the exceptional situation. In short, the RAD considers the appellant's responses to the RPD's questions to be reasonable and plausible. [13] I listened carefully to the recording of the hearing. The appellant has a grade 6 education. She is a Muslim woman raised in a strict family. Her uncle, who listened to Koranic verses during the day, kept her inside the house. There was no television, and she was not allowed to go outside unless she was accompanied and wore a hijab from head to toe. She told her uncle that she did not want to get married when he told her that he had to find her a husband because she was getting old.2 [14] At the hearing, the appellant, who is clearly a vulnerable person, was placed unwittingly in a difficult, if not impossible, position. She was asked by the RPD to explain, with certainty, her uncle's behaviour and his inner motivations, which she tried to do. Once her testimony was given, I consider that the only other person who could have responded with certainty to the RPD's questions about his intentions was the uncle himself, and he was not at the hearing. [15] The RPD's conclusion that the appellant had adjusted her testimony (para. 12) is not correct, nor is the contradiction noted by the RPD in its decision (para. 13). Rather, after carefully listening to the recording, it is clear that the appellant's answers were given to the best of her knowledge since they did not relate to her own intentions, but rather to those of her uncle. Her additions were instead intended to complete or detail her answer in response to the RPD's insistence on repeating the same questions, which in some cases dealt with matters that were particularly sensitive for the appellant. [16] For example, the RPD cited as a contradiction the fact that the appellant initially responded that she had not had any suitors, but then, in response to a subsequent question, that those who had come forward were too poor. I am not of the opinion that the appellant was contradicting herself. A suitor who is too poor to pay a dowry cannot be said to be a suitor. In these circumstances, the RPD's conclusion is not correct. The Refugee Protection Division did not analyze all the evidence Documentary evidence corroborating the fear [17] The RPD made a fatal error in failing to assess all the documentary evidence. [18] The appellant submitted two letters in support of her testimony and the events recounted in her BOC Form. [19] In the first letter,5 her brother explains that the appellant was being subjected to an arranged marriage. [20] In the second letter,6 her mother recounts the forced marriage of her daughter, that she was beaten by the future husband because she did not accept the marriage and that he threatened her with circumcision by the custodians of the tradition. She also explained that the colonel threatened the uncle with prison if he did not bring back the appellant, who had dishonoured him. [21] These two letters corroborate the appellant's allegations of a fear of persecution should she return to Chad and, given my finding regarding the appellant's credibility, I give them probative value. I understand that they were prepared by two members of her family, but in this case, it would not be correct to expect that someone who was not related to the appellant would be able to provide this kind of evidence about her family situation. The appellant's family members are witnesses to her persecution, and they are therefore in the best position to testify about these events.7 The appellant as a member of a particular social group [22] It is my opinion that the RPD made a fatal error in not conducting a specific analysis of the appellant's fear of being persecuted as a member of the particular social group of Chadian women. [23] The case law indicates that women who are forced into marriage have a basic human right violated.8 Furthermore, the practice of circumcision has also been recognized as a human rights violation and, therefore, persecution.9 [24] The appellant's testimony and the corroborating evidence indicate that she is threatened with a forced marriage to an angry and violent man who is also threatening her with circumcision. [25] In Maldonado, the Federal Court of Appeal states that when a claimant swears to the truth of certain facts, this creates a presumption that the facts are true unless there is a valid reason to doubt their truthfulness.10 [26] In this case, having heard the testimony and analyzed the documentary evidence, I am of the opinion that the appellant established a serious possibility of persecution and that it is likely that she would be subjected to one of the risks to her life set out in paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA) should she return to Chad. CONCLUSION [27] For these reasons, the appeal is allowed. I substitute my own determination that XXXX XXXX XXXX is a Convention refugee under section 96 of the IRPA and a person in need of protection within the meaning of section 97 of the IRPA. (signed) "Nicole Ladouceur" Nicole Ladouceur March 10, 2020 Date IRB translation Original language: French 1 Recording of the hearing held on December 5, 2017, 01:01:50. 2 Recording of the hearing held on December 5, 2017, from 00:29:14 to 00:47:49. 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Recording of the hearing held before the Refugee Protection Division (RPD) on December 5, 2017. 3 Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996, Immigration and Refugee Board of Canada. 4 National Documentation Package on Chad, September 29, 2017; Tab 5.5: France, Office français de protection des réfugiés et apatrides [France, French office for the protection of refugees and stateless persons], April 11, 2017, Tchad: Les mariages forcés [Chad: forced marriages]. 5 RPD-1, RPD record, Exhibit C-1: Letter from XXXX, p. 140. 6 RPD-1, RPD record, Exhibit C-4: Letter from XXXX, pp. 147-148. 7 Cruz Ugalde v. Canada (Public Safety and Emergency Preparedness), 2011 FC 458, para. 28. 8 Vidhani v. Canada (M.C.I.), (1995) 3 FC 60. 9 Ramirez v. Canada (M.C.I.), CRDD T-93-12198, May 10, 1994; Annan v. Canada (M.C.I.), 1995 3 FC 25. 10 Maldonado v. Canada (M.C.I.), (1980) 2 F.C. 302 (C.A.) --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-01756 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français