MB9-29623

RAD File No. / No de dossier de la SAR : MB9-29623 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 March 24, 2021 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Sylvain N. Matandi 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] XXXX XXXX XXXX (the appellant) is a citizen of Cameroon. She is appealing the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim due to lack of credibility. [2] The appellant alleges that she was accused of witchcraft by her family after her sister died in 2000. She alleges that she was beaten and her life was threatened following her sister's death. She ceased operating her business and attempted suicide. [3] The appellant argues that she delivered specific and clear testimony with respect to the omission noted by the RPD in relation to her uncle's death threats. She maintains that the omission pointed out by the RPD concerning her fear that her daughter will be killed in revenge was unimportant and irrelevant and that the RPD's conclusion in this regard was unreasonable. She argues that the contradiction noted in relation to her occupation in Cameroon is incorrect. She submits that subsection 97(1) of the Immigration and Refugee Protection Act is applicable in the present case. The RPD found that the appellant was not credible. [4] The determinative issue for the Refugee Appeal Division is whether the RPD erred when it assessed the appellant's credibility. [5] In my opinion, the RPD did not err, the appellant is not credible and its decision is correct. DETERMINATION [6] I dismiss the appeal. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [7] In her Basis of Claim Form (BOC Form), the appellant alleges that she cursed her sister during an argument shortly before her death from a sudden illness and that her family blamed her for killing her, accusing her of witchcraft. She alleges that she was physically assaulted to the point that she woke up in hospital. She was allegedly then ostracized by her family and the community, which pushed her to attempt suicide. She alleges that she moved to another district and that she went out of business due to these accusations and because her customers did not want to have a spell cast on them. She came to Canada in XXXX 2013. On XXXX XXXX XXXX 2015, she returned to Cameroon to look after her ailing daughter, and she came back to Canada two months later. In XXXX 2017, while preparing to return to Cameroon to attend her mother's funeral, she allegedly received death threats from family members who accused her of casting a spell on her mother during her last visit to Cameroon in 2015. She consequently claimed refugee protection on XXXX XXXX XXXX 2017. ANALYSIS [8] My role is to examine all of the evidence and establish whether the RPD's decision is correct.1 In light of Huruglica and Rozas del Solar and after conducting my own analysis of the record, in particular by listening to the audio recording of the hearing and considering the entirety of the evidence, I am of the opinion that the correctness standard of review must be applied. Omission ? death threats [9] At the hearing, when questioned as to whether she had been threatened following her sister's death, the appellant responded that she had. When asked to provide details concerning the threats, the appellant stated that she was still being threatened. When asked to provide more details, she stated that she had been threatened all the time. When asked by whom she had been threatened, she stated that whenever her uncle saw her, he would threaten her verbally and sometimes also had the daughter pass his messages on to her.2 When confronted concerning the allegations of threats in her BOC Form, the appellant stated that she was no longer in Cameroon when her uncle made his threats against her as she was working in Canada and that he was threatening her from there without seeing her.3 [10] The RPD noted that the appellant's testimony was vague regarding the death threats her uncle made against her. It considered that the appellant had not provided a satisfactory explanation for the omission concerning the threats in question. It considered that the appellant further contradicted herself by stating that her uncle had never threatened her directly, whereas she stated previously that she had been threatened directly by her uncle every time he saw her after her sister died. The RPD drew a significant adverse inference as to the credibility of the appellant's allegations that her life was threatened in Cameroon due to accusations of witchcraft made by her family. [11] In her memorandum of appeal, the appellant argues that the RPD erred in the assessment of her credibility in that its finding was unreasonable due to its failure to take into account certain customs and cultural factors, including her level of education. She submits that, contrary to the RPD's assertion that her testimony was vague, her explanations regarding the threats made against her were reasonable, spontaneous and specific. She maintains that the RPD should have taken into consideration the fact that she was threatened subsequent to the accusations of witchcraft and that the threats had become more serious following her mother's death, regardless of whether they were made directly or from a distance or made before or after her sister's death. [12] I respectfully disagree with the appellant and consider that her explanations are unsatisfactory. At the hearing, the appellant stated that her uncle threatened her every time he saw her, and when confronted concerning the omission of these allegations from her BOC Form, she stated that she was not in Cameroon when the threats were made by her uncle but rather in Canada. What is more, when questioned concerning the frequency of the threats, the appellant stated once again that her uncle would threaten her every time he saw her and that he began threatening her following her sister's death. Once again, she stated that her uncle would threaten her whenever he saw her or met up with her. She stated further that she was accused of witchcraft by her uncle in front of everyone following a death in the family.4 [13] It is clear from the testimony that the death threats were made by the appellant's uncle while she was still in Cameroon. She stated initially that her uncle threatened her in person, and when the RPD questioned her concerning her uncle's death threats, she then stated that her uncle threatened her while she was in Canada. I considered the factors listed in the appellant's submissions, including her level of education, but in my view, these do not offset the credibility issues raised by the RPD. All in all, I consider that the issues pointed out concerning the appellant's testimony concern a central aspect of her refugee protection claim. The death threats are also important in that they constitute the very basis of the appellant's fear of returning to Cameroon. The RPD's conclusion is correct in this respect. Appellant's return to Cameroon in 2015 [14] At the hearing, the appellant stated that she returned to Cameroon in 2015 because her daughter was gravely ill. She stated that she had left her with a friend when she left the country because she feared that she would be killed by family members. She stated that although her family had not directly threatened her daughter, she had asked her to avoid them nonetheless.5 When confronted with the omission of the allegations from her BOC Form concerning her fear for her daughter's life and safety and the arrangements she made for her to move in with a friend before leaving the country, she stated that her daughter's life was not in danger but that she feared that she would be in danger, which is why she left her with a friend. She also stated that she had not known that this was important information.6 [15] The RPD noted that since the appellant alleges that she returned to Cameroon when her life was being threatened there due to a fear of retaliation against her daughter related directly to her refugee protection claim, and insofar as she was represented by experienced counsel, it concluded that the appellant had not provided a reasonable explanation for this significant omission and that her credibility was undermined. [16] In her memorandum of appeal, the appellant argues that the omission identified by the RPD was unimportant and irrelevant in that it is her life, not her daughter's, that was directly threatened. She submits that she made mention of it during testimony, and she does not indicate anywhere in her written account that her daughter was also accused of witchcraft. If this had been the case, she would have indicated clearly that her daughter's life was in danger. Contrary to the RPD's conclusion in this regard, she maintains that it was an act of family loyalty that had led her to adopt dangerous behaviour that might otherwise be considered behaviour inconsistent with a lack of subjective fear. She argues that the omission raised by the RPD is peripheral and does not warrant an adverse credibility finding. She submits that her explanation is satisfactory given that threats were made against her following her mother's death. She argues that the RPD's conclusion is unreasonable in this regard. [17] I respectfully disagree with the appellant. While I acknowledge that the appellant stated that she was threatened by her uncle, this does not change the fact that her fear for her daughter's life relates directly to the central allegations made in her written account. Apart from her allegation concerning her daughter's illness, she stated that she returned to Cameroon because she feared for the latter's life and that she had left her with a friend for that same reason because her family might seek revenge against her. She also stated that, even though her family had not threatened her daughter directly, she had asked her to avoid them. When she was confronted with the omission of the allegations concerning revenge and having arranged for her daughter to live with a friend due to this fear, the appellant stated that her daughter's life was not in danger and that she had not known that this was an important fact. [18] The appellant's statements at the hearing are important, as her returning to Cameroon in 2015 and placing her daughter with a friend due to fear of revenge are related to her fear that her daughter will be killed by family members. What is more, the appellant was represented by counsel and consequently should have known that all important facts should be included in her written account, as indicated in the instructions in the BOC Form. [19] In light of the evidence, I consider that the RPD's adverse credibility finding is not the result of a minor, secondary or peripheral omission from the appellant's refugee protection claim. Instead, the allegations omitted are entirely central to the appellant's written account, namely her fear of revenge against her daughter and the measures taken before she left in 2013 to ensure that she was safe with a friend. In this context, I am of the view that the RPD's conclusion is correct on this point. Repercussions on appellant's employment [20] In her BOC Form, the appellant alleges that she went out of business due to the accusations of witchcraft made against her by her family which led her customers to abandon her. When confronted by the RPD with her Canadian visa application,7 in which no occupation is indicated, the appellant stated that she had started up her business in 1979 but was no longer a merchant after going out of business in 2000. The RPD then confronted the appellant with her IMM 5669 immigration form8, which indicates that she was a merchant from 2007 to 2013, and the appellant replied that she had nearly gone out of business, that she had shut down her business in 2000 after the assault, that she no longer had much to sell and that she had almost no business.9 [21] The RPD concluded that the appellant had not explained this significant contradiction and had merely adjusted her testimony. The RPD found that the appellant's credibility was undermined concerning her allegation that she was accused of witchcraft and shut down her business in 2000 for that reason. [22] In her memorandum of appeal, the appellant argues that when she stated that she had a business, she was referring to the period during which she had continued her minor activity of selling doughnuts, working with limited funds, before she was accused of witchcraft. Although she states that she went out of business, she had not stopped entirely in that she had continued certain activities, even if it was nothing like before. The explanations in this respect were in no way an attempt to adjust her testimony but, on the contrary, to explain that she was no longer active to the same extent that she was prior to 2000. [23] I respectfully disagree with the appellant. I must point out that the appellant responded clearly and unmistakably at the hearing that she was no longer considered to be in business as of 2000. Her testimony also does not correspond to the information appearing in her Schedule A immigration form, which indicates that she was a merchant between 2007 and 2013.10 What is more, in her temporary resident visa application, she indicates that she was without work between XXXX 2003 and XXXX 2013.11 In her application to extend her stay submitted in Canada, she states that she was without work between XXXX 2004 and XXXX 2014.12 In her other application to extend her stay, she indicates that she was without work between XXXX 2004 and XXXX 2013.13 [24] In my view, the information varies with respect to the appellant's occupation, and her explanations in this regard are unsatisfactory. The contradiction relates to a central element of the appellant's refugee protection claim, as she alleges that she went out of business in 2000 following the accusations of witchcraft and due to the fact that her customers did not want to have a spell put on them. The RPD's conclusion is correct in this respect. [25] I would point out that the appellant is not challenging the RPD's findings concerning the evidence, including its finding concerning the discrepancies in the medical report.14 I independently examined the evidence provided by the appellant in support of her refugee protection claim, and I consider that it does not offset the credibility issues raised by the RPD. Analysis under section 97 of the Immigration and Refugee Protection Act [26] In her memorandum of appeal, the appellant argues that she would be subjected personally to a risk if she were ever to return to Cameroon. She submits that her fear can be analyzed objectively in light of the conditions prevailing in her country as well as the repressive laws concerning witchcraft and the manner in which they are enforced. [27] I respectfully disagree with the appellant in this regard. Although witchcraft may be punishable in Cameroon, this does not change the fact that the appellant has failed to discharge her burden to establish, on a balance of probabilities, the truthfulness of her allegations concerning the accusations of witchcraft made against her by her family. After reviewing all of the evidence, I consider that the appellant has failed to discharge her burden of establishing that there is a serious possibility that she would be persecuted in Cameroon or that she would be subjected personally, on a balance of probabilities, to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment. [28] In short, I consider that the RPD did not err in its adverse findings with respect to the appellant's credibility. I agree with the RPD's determination and consider it correct. CONCLUSION [29] I dismiss the appeal and confirm the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Toni Jedid Me Toni Jedid March 24, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Audio recording of hearing on September 24, 2019, 00:22:53 to 00:24:56. 3 Ibid., 00.26.56. 4 Ibid., 00.24.56. 5 Ibid., 00.27.54 to 00.31.44. 6 Ibid., 00.58.10. 7 SPR-1, Refugee Protection Division record, consolidated list of documents, Doc. No. 4, visa application, at p. 141. 8 Ibid., IMM 5669 (Schedule A) immigration form, q. 8, at p. 36. 9 Supra, endnote 2, 00:49:25. 10 Supra, endnote 8, Schedule A, at p. 36. 11 Supra, endnote 7, temporary resident visa, at p. 141. 12 Ibid., application to extend stay, at p. 72. 13 Ibid., application to extend stay, at p. 106. 14 Ibid., Exhibit P-1, medical report, at p. 56. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-29623 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français