MB6-02604

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 File No. / N° de dossier de la SAR : MB6-02604 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelante Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision August 9, 2017 Date de la décision Panel Me Julie Corry Tribunal Counsel for the Appellant(s) Me Odette Desjardins Conseil(s) du (de la/des) appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Me Véronique Aubry Conseil du (de la) ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of the People's Republic of the Congo (Brazzaville), is appealing against the decision of the Refugee Protection Division (RPD). [2] The appellant is requesting that the RPD determination be set aside and that her appeal be allowed. She submits that the RPD made numerous errors in its interpretation of the facts. [3] The appellant attached an affidavit1 to her appeal record, and she is requesting a hearing so that the Refugee Appeal Division can make a finding on her credibility.2 [4] The Minister of Immigration, Refugees and Citizenship Canada (the Minister) intervened in this refugee protection claim before the RPD. The Minister was not present at the hearing, but provided submissions and produced evidence. The Minister did not intervene in the appeal before the RAD. DETERMINATION OF THE APPEAL [5] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the RPD's determination that XXXX XXXX XXXX is not a Convention "refugee" or a "person in need of protection" under section 96 and subsection 97(1) of the IRPA,3 and substitutes the determination that, in its opinion, should have been made. [6] The RPD erred and its decision is incorrect. [7] The appellant is a "Convention refugee" under section 96 of the IRPA. [8] The appeal is allowed. BACKGROUND Summary of alleged facts [9] The facts alleged are detailed in the appellant's Basis of Claim Form4 (BOC Form) and in the statement attached to the BOC Form, as well as in her oral testimony, and I will provide a brief summary only. [10] The appellant has four children: two biological children with her first common-law spouse, XXXX XXXX, who disappeared in 2009 during a trip to South Africa, and two adopted children. [11] The appellant met her second common-law spouse, XXXX XXXX XXXX XXXX (XXXX), a soldier, and she moved in with him in June 2011. The couple is not married and they do not have any children together. [12] The appellant states that she was the victim of domestic violence by her former common-law spouse, XXXX. [13] Early on in the relationship, toward late 2011, the appellant's brother, XXXX XXXX XXXX, discovered that XXXX had previously been a member of the Cobras militia. The appellant testified that her father was killed by the Cobras in 1998. Consequently, the family was initially reluctant to accept XXXX. The appellant, however, decided to stay with him. [14] The appellant's brother, who took care of her after their father died, never accepted XXXX, particularly in light of his job as a soldier and the fact that he openly supported the government. Her brother supported the opposition, against the government, and is a member of the Mouvement Congolais pour la Démocratie et le Développement Intégral (MCDDI) [Congolese movement for democracy and integral development]. [15] The appellant states that her problems began in 2015, and that they began because of the political changes in the country, specifically, the fact that President SASSOU-NGUESSO wanted to amend the Constitution. [16] XXXX supported the President's position, and the appellant's brother was openly against that position. There were arguments between the two men, to the point that the appellant, following a violent altercation between the two in June 2015, decided to avoid contact with her family to allow the situation to calm down. [17] The appellant states that her problems with XXXX began with negative comments about her brother and her family, and that the tension increased gradually. Her spouse verbally abused her for months, as political tension in the country intensified, and turned on her because of the political position taken by her family, who were opposed to President Sassou-Nguesso. [18] The verbal abuse erupted into physical and sexual violence on XXXX XXXX, 2015. From that time on, the appellant was regularly the victim of all manner of abuse. [19] On the morning of September 7, the appellant left her children with her mother, who advised her to file a complaint at the police station. She tried to do so with her mother's help, but the police officers refused to accept her complaint because they knew her spouse's identity and military rank. [20] XXXX found out that the appellant had gone to the police station and, on the night of XXXX XXXX, 2015, he assaulted her again. [21] The appellant's mother encouraged her to leave XXXX, and her brother was prepared to help her leave the country. The appellant feared that XXXX would retaliate against her family if she left him. [22] The appellant finally decided to leave the country and gave her passport to her brother so that he could apply for a Canadian visa in her name. The visa was issued on XXXX XXXX, 2015, and she left the Congo on XXXX XXXX, 2015. She left her children with her mother. [23] The appellant learned in late January 2016 that XXXX was still looking for her and that he had threatened to go after her family if she did not return. [24] She fears that, given his resentment and his powerful position in the army, XXXX will attack her again if she returns to the Congo. [25] President Sassou-Nguesso was re-elected in March 2016 in controversial circumstances, and the political situation in the country is unstable. Opponents are being tracked down, and the appellant's family has had to relocate for security reasons. The appellant testified that her brother went to Pointe-Noire in early 2016 because of his political problems. She also testified that, because of the political situation and a lack of money, it is difficult to communicate with her family. [26] The Minister intervened in the case before the RPD for reasons relating to credibility, to submit evidence that an initial visa application was made online on XXXX XXXX, 2015, and that that application was refused. [27] The Minister noted that the appellant failed to mention that first application, and that it was filed before her spouse became violent. [28] The appellant testified that she was not aware of what steps her brother had taken in relation to the initial application made in July 2015, and that she only learned of it when the Minister intervened in April 2016. She contacted her family in the Congo, and they told her that her brother had filed the application in July without telling her, because he knew that her situation with XXXX was worsening, given the repeated altercations, he wanted to help her get away from the danger. RPD's decision [29] The hearing before the RPD was held on April 13, 2016, and the decision rejecting the refugee protection claim was rendered on May 2, 2016.5 The RPD determined that the appellant was not a Convention "refugee" or a "person in need of protection." [30] The RPD rejected the refugee protection claim mainly because of an omission by the appellant, that is, she failed to mention in her BOC Form that an application for a visitor visa had been filed without her knowledge on XXXX XXXX, 2015, and refused on XXXX XXXX, 2015. [31] The RPD was of the opinion that this omission, and the fact that the initial visa application was made in July 2015, before XXXX physically assaulted her, undermined her claim to the point that the panel no longer believed that the appellant was a victim of domestic violence or that XXXX was butting heads with her family for political reasons. [32] The RPD concluded that the appellant had not discharged her burden of establishing that she faced a serious possibility of persecution on a Convention ground should she return to the Congo, and that she failed to demonstrate, on a balance of probabilities, that she could be a "person in need of protection." Appellant's arguments [33] The appellant submits that the RPD made numerous errors in its interpretation of the facts. [34] The appellant's main argument is that she did not know about the visa application in question, which was made by her brother, XXXX, without her knowledge in July 2015. [35] The appellant argues that the RPD did not raise any contradiction or omission regarding the events relating to the domestic violence that she experienced. PRELIMINARY ISSUES New evidence [36] The appellant attached an affidavit to her appeal record. She did not explain the reason for the affidavit or whether it was new evidence. She did not formally request that it be admitted as new evidence. [37] The appellant's affidavit is dated after the rejection of her claim and was obviously not part of the record before the RPD. The text of the affidavit is almost identical, word for word, to the text attached to the appellant's BOC Form, except for certain parts of paragraphs 26 to 34, which add information about the appellant's situation and actions following her hearing before the RPD.6 [38] First, the appellant did not comply with subparagraph 3(3)(g)(iii) of the Refugee Appeal Division Rules (RAD Rules),7 as she does not explain how the new evidence meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to her.8 Subparagraph 3(3)(g)(iii) of the RAD Rules states that the appellant must provide full and detailed submissions on both of these points. [39] Second, subsection 110(4) further states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [40] The affidavit is dated after the RPD rejected the claim, but there is no explanation as to why the information it contains was not provided beforehand. [41] I conclude that the affidavit does not comply and therefore does not constitute new evidence within the meaning of subsection 110(4) of the IRPA. Request for a hearing [42] The appellant is requesting a hearing so that her credibility can be assessed.9 [43] Under subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it must be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If so, the RAD may then hold a hearing. [44] The RAD must determine whether the criteria set out in subsection 110(6) of the IRPA have been met.10 One of the determining factors is that evidence presented on appeal must have been deemed admissible.11 However, in this case, the appellant's affidavit dated June 15, 2016, was not admitted. Consequently, there is no cause to hold a hearing before the RAD. Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution12 [45] Guideline 4 must be considered in appropriate cases. It is incumbent on decision-makers to possess the knowledge required and to apply it in an understanding and sensitive manner when deciding issues of violence against women. [46] Although decision-makers must be particularly sensitive to the difficulties that some women who are victims of, or who fear becoming victims of, violence face when giving testimony, Guideline 4 is not intended to serve as a cure for all deficiencies in the refugee protection claim or in the documents submitted in evidence.13 [47] In this case, the RPD stated that it took into account Guideline 4 in its analysis.14 When reviewing the case and preparing this decision, I also took into account Guideline 4, as this was an appropriate case in which to apply it. SCOPE OF THE APPEAL [48] For questions of law, of fact or of mixed fact and law that are not based on findings of credibility related to the oral testimony, I applied the correctness standard of review, as established in Huruglica.15 [49] For questions of fact or of mixed fact and law that are based on findings of credibility related to the oral testimony, and only in cases where the RPD had a meaningful advantage when drawing a conclusion, I applied the standard of RAD reasonableness, as recently established in a decision rendered by a three-member panel.16 [50] I conducted an independent assessment of all the evidence on the record in order to form my own opinion about this refugee protection claim and to determine whether the decision rendered by the RPD is well founded. DETERMINATIVE ISSUE [51] The determinative issue in this case is credibility. [52] Is there objective evidence that the appellant will be persecuted by her former spouse XXXX in the Congo, and would XXXX still be interested in the appellant? ANALYSIS Credibility assessment [53] The RPD found that the appellant was not a credible witness because of an omission and a contradiction in the evidence regarding important factors in her refugee protection claim. [54] The assessment of credibility is a question of fact for which I find that, generally speaking, the RPD has a meaningful advantage over the RAD, because it has the opportunity to see, hear and question the witnesses. However, in the context of the IRB, and considering the importance for refugee protection claimants of the decision that is rendered, I am of the opinion that this advantageous position enjoyed by the RPD because it is able to see, hear and question claimants does not give it carte blanche or render it immune from any intervention by the RAD. The findings made must be based on all the relevant evidence, claimants' statements must not be viewed in isolation without taking into account the cultural context or the evidence as a whole, and the findings must take into account the applicable jurisprudential principles. [55] For her refugee protection claim to be allowed, the appellant has the burden of establishing that there is a serious possibility, that she has a well-founded fear, of being persecuted, or that it is more likely than not that she would be personally subjected to a risk to her life, to a risk of cruel and unusual treatment or punishment, or to a danger of torture, if she returned to the Congo. [56] For its part, the RPD is entitled to make findings based on implausibility, common sense and rationality.17 The issue of credibility is one of fact and cannot be determined by following a set of rules.18 [57] In Jamil, the Federal Court gave examples of the RPD's credibility findings with regard to the person who was the subject of the appeal that were unjustifiable: 25 ... - Findings for which there was no evidence; - Findings of the tribunal based on conjecture, resulting in unjustified and unsupported inferences regarding the circumstances leading to an application for refugee status; - Inconsistencies drawn between POE notes and an applicant's testimony or the applicant's PIF where a tribunal dwells on details and not on the substance of the claim and leads to misconstruction of the evidence. Any such inconsistencies should be major and not minor and sufficient by itself to call into question the applicant's credibility. (See Mushtaq v. Canada (Minister of Citizenship and Immigration), 2003 FC 1066; and - The tribunal must be reasonable in rejecting an applicant's explanation when confronted with a contradiction and must not be quick to apply North American logic and reasoning to a claimant's behaviour, (see R.K.L., supra, at para 12); - The tribunal must assess the applicant's claim against the totality of the evidence.19 [58] To discharge the burden of establishing that she falls within the refugee definition, the appellant needs to show that there is a serious possibility that she would face a risk of persecution. She must demonstrate a subjective fear of persecution that is objectively well-founded. A subjective fear of persecution is based on the assessment of the appellant's credibility and on the appellant's behaviour, while an objective fear is usually established by documentary evidence on country conditions.20 Before the RPD, the appellant submitted the index of the National Documentation Package for the Congo, along with other articles on the more recent political situation, that is, the March 2016 election, which I have taken into account. [59] Having reviewed all the evidence before me, I am of the opinion that the RPD erred in assessing the appellant's credibility. My reasoning follows. Omission in the BOC Form - contradiction and inconsistency in the evidence [60] In this particular case, I am of the opinion that the RPD had an advantage in terms of assessing the contradiction and the inconsistency in the evidence, and specifically in the appellant's oral testimony, given its ability to see, hear and question the witness, and I must show deference. [61] That said, I have listened to the recording of the hearing and I have reviewed the record, and I do not agree with the RPD's finding. It was not reasonable to find that the appellant was not credible in her explanation concerning the first visa application filed by her brother in July 2015 without her knowledge, which she failed to mention in her BOC Form. I found the appellant's testimony spontaneous and her explanation satisfactory. [62] I find it credible that the appellant's family, and especially her brother XXXX, would have wanted to protect her and would have seen the situation deteriorating between her and XXXX, and would also have considered the country's political climate, which was becoming increasingly tense. Her brother was in a good position to understand the danger and to act subtly, given his position as an advocate for the MCDDI. [63] I find that it is credible that her brother would have filed the first visa application without telling his sister, so that he would be able to help her when she needed it. The sequence of events is logical, considering the verbal altercation between the two men in June 2015. With his position against the government, XXXX would have been able to see the potential danger posed by XXXX. [64] Even though XXXX XXXX, 2015, was the first time that the domestic violence became serious and physical, the verbal abuse and distrust of the appellant's family were existing factors and had been steadily worsening since the start of the year. It would therefore be logical for the appellant's brother to have filed a visa application before XXXX XXXX, 2015. [65] The second visa application, in October 2015, also prepared by her brother, contains almost all the same information as the first, and the appellant admitted that she had agreed to some false information in order to increase her chances of success. That should not undermine her credibility. [66] It must be noted that in the second visa application, the appellant responded "yes" to the question of whether she had submitted any previous application to enter Canada, and an explantion was provided as to why the first application was refused.21 [67] The appellant only gave her brother her passport for the second application, in fall 2015, and that makes sense, given that the first application was refused and a passport is requested only once the application has been allowed. [68] Consequently, I am of the opinion that the appellant's explanation is satisfactory and plausible and that the RPD erred in drawing a serious negative inference concerning the appellant's credibility in this respect. The RPD did not consider all the evidence when it assessed the appellant's credibility on this point, and in this, the panel erred. In my opinion, the RPD's conclusion is unreasonable. [69] Moreover, in my opinion, the RPD erred by failing to consider the psychological state and life experience of a woman who has been a victim of violence. [70] Although it is well established that it is open to the RPD to gauge a refugee protection claimant's credibility by drawing negative inferences when there are omissions, contradictions and inconsistencies in the evidence, it must still determine that the claimant's explanations were not satisfactory, plausible or credible in the circumstances. [71] After analyzing the totality of the evidence, including the oral testimony before the RPD, I am of the opinion that the appellant's responses and explanations were plausible and satisfactory in light of her personal experiences and life circumstances. Therefore, I find that the RPD's credibility findings are in error. Serious possibility of persecution [72] Finally, after reviewing the documentary evidence and listening to the testimony, I am of the opinion that the appellant has objectively established that she would face a serious possibility of persecution if she returned to the Congo. The objective basis for a risk of persecution must be assessed on a forward-looking basis at the time of the decision. The appellant has demonstrated that she has a subjective fear that is objectively well founded. [73] The evidence shows that XXXX is a violent, resentful man and that he threatened the appellant's family even though he knew that she had left the country. XXXX is a career soldier who supports the current government, and he has expressed a desire to retaliate against the appellant and her family. [74] The appellant testified that once she identified XXXX as her assailant on XXXX XXXX, 2015, the police refused to take her complaint. Consequently, she cannot expect to receive adequate state protection. [75] With regard to an internal flight alternative, given XXXX career in the military, I am also of the opinion that the appellant cannot live safely elsewhere in the Congo. In other words, with his contacts and the cooperation of law enforcement authorities as described, XXXX has the ability and the willingness to find the appellant if she were to relocate within the country. [76] I am of the opinion that there are sufficient grounds to conclude that, objectively, there is a serious possibility of persecution. CONCLUSION [77] For the above reasons, after reviewing the RPD's reasons for decision, considering the RPD record and the appellant's record, listening to the recording of the hearing, and conducting an independent review of the record, pursuant to paragraph 111(1)(b) of the IRPA, I am setting aside the RPD's determination that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 96 and subsection 97(1) of the IRPA, and substituting the determination that, in my opinion, should have been made. [78] The RPD erred, and its decision is incorrect. [79] The appellant is a "Convention refugee" under section 96 of the IRPA. [80] The appeal is allowed. Julie Corry Me Julie Corry August 9, 2017 Date IRB translation Original language: French 1 Appellant's affidavit, June 15, 2016. 2 Appellant's record, June 15, 2016, paragraph 8. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, sections 96 and 97, and subsection 111(1). 4 Appellant's "Basis of Claim Form" (BOC Form), signed on February 9, 2016. 5 RPD's reasons and decision, pages 3 to 9 of the RPD record. 6 Appellant's BOC Form signed on February 9, 2016, and appellant's affidavit signed on June 15, 2016. 7 Refugee Appeal Division Rules, SOR/2012-257, subparagraph 3(3)(g)(iii). 8 IRPA, subsection 110(4). 9 Appellant's record, June 15, 2016, paragraph 8. 10 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, paragraph 11. 11 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier, Nadon, March 29, 2016; 2016 FCA 96, paragraph 51: "...the basic rule is that the RAD 'must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division [...]' (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6)." 12 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective date: November 13, 1996. This Guideline is available on the IRB website. 13 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, at paragraphs 29 to 32. 14 RPD's reasons and decision, pages 3 to 9 of the RPD record, paragraph 20. 15 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraphs 78, 98 and 103. 16 X (Re), 2017 CanLII 33034 (CA IRB), paragraph 72. 17 Laszlo v. Canada (Minister of Citizenship and Immigration), 2005 FC 456, paragraph 11. 18 White v. The King, [1947] S.C.R. 268, p. 272. 19 Jamil v. Canada (Minister of Citizenship and Immigration), 2006 FC 792, paragraphs 23 to 25. 20 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM-4087-08, Beaudry, April 23, 2009; 2009 FC 398, at paragraph 16. 21 Appellant's record, p. 31: Exhibit M-1, visitor visa application, at page 3 of 5, under "Background information". --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-02604 15 RAD.25.02 (September 11, 2016) Disponible en français