MB6-02718

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. / No de dossier de la SAR : MB6-02718 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision January 31, 2018 Date de la décision Panel Me Julie Corry Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Kibondo Kilongozi Conseil(s) (de la/des) personne(s) 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 the Republic of Côte d'Ivoire, is appealing a decision of the Refugee Protection Division (RPD). [2] The determinative issue in this case is credibility. The RPD did not believe that the appellant had been promised in marriage to her cousin or that she would be excised before the marriage. After analyzing the documentary evidence, the RPD concluded that the appellant's profile did not match that of girls forced to marry and undergo excision. The RPD added that the appellant's allegations were not corroborated by the documentary evidence. The RPD also pointed out contradictions in the testimony and the appellant's written account in her Basis of Claim Form (BOC Form). Finally, the RPD found problematic the appellant's delay in leaving her country and in claiming refugee protection after she arrived in Canada. I have analyzed the evidence on the record and read the transcript from the RPD hearing to determine whether the RPD erred in its analysis of the appellant's credibility. [3] The appellant is presenting new evidence but is not requesting a hearing. [4] The Minister of Public Safety and Emergency Preparedness did not intervene in this appeal before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [5] I allow the appeal and set aside the RPD's determination. [6] XXXX XXXX XXXX is a "Convention refugee" pursuant to section 96 of the Immigration and Refugee Protection Act1 (IRPA). BACKGROUND Summary of alleged facts [7] The alleged facts are primarily detailed in the appellant's BOC Form,2 as well as in the testimony she and her aunt provided at the RPD hearing. [8] The appellant is a citizen of the Republic of Côte d'Ivoire, and she lived with her family in Abidjan. She is of Malinke origin and of the Muslim faith. She was born on XXXX XXXX, 1997. [9] She alleges that she fears her family members because they want her to marry her cousin and to be excised before she is married. [10] Toward the end of secondary school, one of the appellant's aunts told her that she was going to be marrying the aunt's son, XXXX XXXX, who is much older and already married with children. The aunt was waiting for the appellant to finish her "BAC" before starting to prepare for the wedding. [11] The appellant agreed that she would have a few more months to travel before the wedding, and her mother promised to help her get out of it. [12] She obtained a Canadian visa in XXXX 2015 and left Côte d'Ivoire with her mother in XXXX 2015. They went to Ottawa, where they had family. The appellant claimed refugee protection in Canada in January 2016. RPD decision [13] The RPD hearing was held on April 22, 2016, and the decision to reject the refugee protection claim was rendered on April 28, 2016.3 The RPD concluded that the appellant is neither a "Convention refugee" nor a "person in need of protection." [14] The RPD rejected the refugee protection claim on the grounds that it lacked credibility because, among other things, documentary evidence on forced marriage and excision in Côte d'Ivoire painted a very different picture of young Ivorian women than the appellant's profile. The RPD found that the appellant's allegations were not corroborated by the documentary evidence. [15] The RPD also found that the appellant's testimony was not credible mainly for the following reasons: * She states in her account that her parents were against her marrying her cousin, but her father telephoned her in Canada to have her return home to be married; * The appellant testified that she did not know her sister's status or whether she had also been promised in marriage; * There were contradictions between Aunt XXXX and the appellant's testimony; * The delay in leaving her country; * The delay in claiming refugee protection after she arrived in Canada. [16] The RPD ultimately found that the appellant had not discharged her burden of establishing a serious possibility of persecution on a Convention ground or that she would more likely than not be personally subjected to a risk to her life or to a risk of cruel and unusual treatment or punishment if she returned to her country. Appellant's allegations [17] The appellant is asking that the RPD decision be set aside and that her appeal and her refugee protection claim be allowed. She submits that the RPD made errors in law and fact and erred in its assessment of her credibility. [18] The appellant argues that the RPD failed to analyze all the documentary evidence and in fact failed to consider specific evidence which contradicted its findings. In other words, the RPD failed to mention specific parts of the documentary evidence which supported the appellant's allegations. [19] The appellant also argues that the contradictions and inconsistencies in the testimonies raised by the RPD were not significant enough to support a negative finding. [20] She submits that her explanations for her delay in leaving and in claiming protection in Canada were probable and plausible and that the RPD had not taken her circumstances into account. [21] Finally, the appellant is asking the RAD to take any other measures it considers fair in the circumstances. NEW EVIDENCE [22] The admissibility of new evidence before the RAD is based on the application of subsection 110(4) of the IRPA and jurisprudential tests. [23] Subsection 110(4) of the Act provides that the person who is the subject of the appeal may present 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. [24] In Singh,4 the Federal Court of Appeal emphasizes the narrow interpretation of subsection 110(4) of the IRPA. It indicates that the explicit conditions set out therein have to be met and leave no room for discretion on the part of the RAD, whose role is not to provide the opportunity to complete a deficient record, but to allow for errors of fact, errors of law or mixed errors of fact and law to be corrected. However, the Court adds that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.5 [25] The Federal Court of Appeal indicates that the implicit admissibility conditions mentioned in Raza are also applicable subject to certain adaptations, such as credibility, relevance and newness.6 [26] It is well established that the onus is on the appellant to make full and detailed submissions regarding how this new evidence meets the requirements of subsection 110(4) of the IRPA and how it relates to the appellant.7 New evidence in the appeal record Appellant's affidavit dated June 22, 2016 [27] The appellant included an affidavit in her appeal record and mentions it in paragraph 2 of her memorandum.8 She states that in the current appeal, she will rely on the facts set out in this affidavit. She does not indicate whether the latter is new evidence. She does not formally ask that it be admitted as new evidence. [28] This is not consistent with subparagraph 3(3)(g)(iii) of the Refugee Appeal Division Rules (RAD Rules)9 because she does not explain how it meets the criteria in subsection 110(4) of the IRPA.10 [29] The affidavit is dated after the claim was rejected, and it was clearly not part of the record before the RPD. There is clearly nothing new in one part of the affidavit in the way of objective evidence establishing that the appellant faces a serious possibility of persecution if she returns to Côte d'Ivoire. In fact, the text in paragraphs 4 to 18 of the affidavit is a word-for-word copy of the account in the appendix to the BOC Form. Therefore, although the affidavit is dated after the RPD decision, the information in those paragraphs of the affidavit was available before that date. [30] Paragraphs 1 to 3 and 19 to 48 relate to the appeal before the RAD and present the argument which should be in the appellant's memorandum. In fact, certain paragraphs are cited and repeated in her memorandum. [31] This affidavit is therefore not new evidence within the meaning of subsection 110(4) of the IRPA. I will consider only the paragraphs in the appellant's memorandum. Letter from the appellant's mother dated June 20 [32] The appellant included in her appeal record a letter from her mother dated June 20. I presume it was written in 2016, but there is no year indicated. Again, this is not consistent with subparagraph 3(3)(g)(iii) of the Rules because she simply states that she is relying on subsection 110(4) without explaining how it meets the criteria in subsection 110(4) of the IRPA. [33] The letter is dated after the claim was rejected, but the content clearly does not add anything new in the way of objective evidence establishing that the appellant faces a serious possibility of persecution if she returns to Côte d'Ivoire. The facts provided could have been submitted to the RPD. [34] Therefore, this letter does not constitute new evidence within the meaning of subsection 110(4) of the IRPA. New evidence received after the appeal record Psychological assessment reports and acknowledgement of conditions - CIC [35] Through her counsel, the appellant submitted three more pieces of evidence to the RAD on December 22, 2016, with no explanation except to ask that the RAD include the documents in its analysis of the appeal. [36] Again, this is not consistent with subparagraph 3(3)(g)(iii) of the Rules because she did not explain how it meets the criteria in subsection 110(4) of the IRPA. [37] The first document is an addendum to a psychological report by Dr. XXXX XXXX, dated December 21, 2016. The second document is the first psychological report by Dr. XXXX XXXX, dated November 29, 2016. The psychological reports are dated after the claim was rejected and were clearly not part of the record before the RPD. [38] The consultations with the psychologist were held after the claim was rejected, and it was the appellant's counsel who referred her to the psychologist. The appellant does not provide any explanation as to why she was unable to consult a psychologist before and submit these reports to the RPD. Since there are no convincing explanations, I do not accept these documents as new evidence. [39] The third document is an acknowledgement of conditions on a Citizenship and Immigration Canada form signed by the appellant on February 8, 2016. This document is dated before the claim was rejected and clearly could have been submitted to the RPD. [40] In conclusion, these three documents therefore do not constitute new evidence within the meaning of subsection 110(4) of the IRPA. SCOPE OF THE APPEAL [41] The appellant notes in her memorandum that the standard of reasonableness applies in matters of credibility. [42] Based on more recent jurisprudence, the RAD intervenes when it finds that the RPD is wrong in fact, in law, or in fact and law.11 It must therefore establish whether the RPD's decision is correct.12 [43] In assessing the credibility of oral evidence, the RAD defers to the findings of the RPD where it enjoys a meaningful advantage in making a particular finding.13 In this case, the RAD applies a standard of reasonableness to each of the findings, as per the recent decision in X(Re).14 It then makes an overall finding of credibility, determining whether the RPD erred in its assessment. In other words, the RAD determines whether the RPD's decision is correct. [44] After an exhaustive review of the RPD decision, the RAD carries out its own analysis, in light of all the evidence on the record15 and what the appellant discloses in her memorandum of appeal.16 [45] I conducted an independent analysis of all the evidence on the record, including the transcript from the RPD hearing, in order to formulate my own opinion on this refugee protection claim and determine whether the decision the RPD rendered is correct. DETERMINATIVE ISSUE [46] The determinative issue in this appeal is credibility: * Did the RPD err in its assessment of the appellant's credibility? More specifically, did the appellant submit objective and credible evidence that there is a serious possibility should she return to Côte d'Ivoire that she will be persecuted by members of her family or that it is more likely than not they will harm her? ANALYSIS [47] Guideline 417 must be taken into account in appropriate cases. Decision-makers must exhibit the necessary knowledge and apply it in an understanding and sensitive manner when deciding on matters of violence against women. Although decision-makers must be particularly sensitive to the difficulty some women who have been or who fear becoming victims of violence may have in testifying, Guideline 4 is nevertheless not intended to serve as a cure for all deficiencies in the refugee protection claimant's claim or documents submitted as evidence.18 [48] In this case, I note that the appellant is a woman who fears she will be persecuted because she wants to break certain cruel and discriminatory customs against women in her country, such as forced marriages and excision, and I take that into account. Assessment of credibility [49] The assessment of credibility is a question of fact for which I find the RPD generally has an advantage over the RAD because it questions, sees and hears the witnesses. However, in the context of the Immigration and Refugee Board of Canada (IRB), and given the importance of the decision rendered for the refugee protection claimants, I am of the opinion that this advantageous position enjoyed by the RPD because it questions, sees and hears the claimants does not give it carte blanche or render it immune from any intervention by the RAD. The findings must be based on all the relevant evidence; claimants' statements must not be viewed in isolation, without considering the cultural context or the evidence as a whole; and the findings must take into account the applicable jurisprudential principles. [50] In the case at hand, after examining all of the evidence before me, I find that the RPD erred in its assessment of the appellant's credibility. My reasoning is as follows. [51] First, the assessment of credibility must take into account, among other things, the refugee protection claimant's culture, customs in his or her country, the interpretation and significance of certain temporal concepts, level of education, and social and work experience. A UNHCR document on the assessment of credibility reads: The applicant's testimony has to be assessed in the context of his or her gender, linked also with other factors such as age, culture, religion, family, and socio-economic status in the country of origin or place of habitual residence. Interviewers and decision-makers need to maintain an objective and impartial approach so that they do not reach conclusions based on stereotypical, superficial, erroneous, or inappropriate perceptions of gender.19 Documentary evidence vs. the appellant's profile [52] The appellant testified that she fears members of her family because they want her to marry her cousin and get excised before the marriage. Her family belongs to the Malinke ethnic group, and forced marriages between cousins and excision are common in this group. It is a tradition followed by her family, including her parents, and her aunts and uncles. The claimant's Aunt XXXX told her that after she finishes secondary school she will marry her son and that she will be excised before the marriage. The appellant also testified that her parents were powerless to refuse the marriage or to complain to the authorities because her family would be shamed, it would cause a scandal, and she and her family might be cursed. [53] The RPD did not believe the appellant and indicated that, based on information obtained from two research reports by the IRB Research Directorate, the appellant's profile did not match that of girls likely to be forced into marriage and to be excised in the Malinke ethnic group in Côte d'Ivoire. [54] The first report consulted, CIV105478.FE,20 is on the practice of excision among the Malinke, and the second, CIV105479.FE,21 is on forced marriages among the Malinke. [55] What the RPD gleaned and cited from part of this documentary evidence is that although forced marriages are frequent among the Malinke, they occur more in rural areas and the northern regions. The RPD also noted that forced marriages are increasingly less common in educated families. [56] The RPD also cited legislation in Côte d'Ivoire on family and marriage which establishes free and voluntary consent as a condition for marriage. For the first time, in one case in Bouaké, a father was found guilty of trying to force his 11-year old daughter into marriage. [57] The RPD noted that excision is described as illegal in the documentary evidence. However, although the practice is no longer widespread among the Malinke, it still exists, particularly in rural areas. Young girls are more subject to excision, particularly before they turn 15. Excision is a requirement before marriage for some, but not all, Malinke. Some sources report that if the young girl and her family refuse excision, they may be ostracised and harassed by members of the community. However, one source of information reports that there are no repercussions when a woman refuses to have her daughter excised if they live in the north.22 [58] The RPD concluded that [translation] "the profile of the refugee protection claimant as a young, urban, educated girl whose parents are educated and have some financial means is quite different from that of a young, rural, ethnic Malinke girl from northern Côte d'Ivoire, more likely to be a victim of forced and early marriage based on the documentary evidence, and who could be excised before the age of 15. In the panel's opinion, the refugee protection claimant's allegations are not corroborated by the documentary evidence."23 [59] In her memorandum of appeal, the appellant criticizes the RPD for being selective and taking into account only certain parts of the documentary evidence which supported its conclusions, without mentioning evidence to the contrary. She cites Federal Court jurisprudence, which establishes that in assessing the credibility of a refugee protection claimant all of the evidence must be considered, not just selected portions. She argues that also includes the conditions in the country of origin, as well as the experiences of individuals in a situation.24 [60] In the CIV105479.FE report on the practice of forced marriages among the Malinke, there is another source, the Secretary General of the Association des femmes juristes de Côte d'Ivoire (AFJCI), which states that Malinke women who are married by force are generally between 15 and 35 years of age at the time of the marriage. That source also states that the prevalence of forced marriage among the Malinke does not vary depending on the woman's level of education.25 [61] The RPD did not mention this source or explain why it preferred one source over another among the documentary evidence. [62] On a similar topic, that is, the refusal and its consequences, the RPD noted that if a young girl and her family refuse excision they may be ostracized and harassed by members of the community, but it did not take into account what a manager for the protection, education and capacity building program of the Organisation pour l'enfant, la femme et la famille stated about refusing a forced marriage: According to tradition, a young girl has no right to refuse to marry the man whom her parents chose for her, to the extent that her opinion, and even less her agreement, do not surpass tradition. ... The family, considering the girl's refusal as an affront and a disgrace, has the right to disinherit her, renounce her and chase her from the family. In the worst of cases, the father, unable to live with this dishonour, may kill his daughter (ibid.).26 [63] Furthermore, with respect to refusing excision and possible recourse, although the RPD noted that it is an illegal practice, it did not take into account the part of the CIV105478.FE report on the practice of excision among the Malinke which states that perpetrators are very seldom identified and pursued and in which the judicial recourse procedure in the case of excision is described as theoretical. The report also indicates that victims of excision rarely or never complain to the authorities and that young Malinke girls are not accustomed to filing complaints with the police. If you file a complaint against a relative, you are up against the entire community.27 [64] I do not find in this case that the RPD enjoyed a meaningful advantage in assessing the appellant's oral testimony as a result of its ability to see, hear and question the witness, and I do not owe it any deference. This is instead a situation where I must assess the content of the documentary evidence in its entirety, and I have the same abilities as the RPD to do so. [65] In my opinion, and particularly given the evidence contained in the two research reports, I agree with the appellant that the RPD erred by relying on certain parts of the reports without mentioning or considering the others noted above. There is conflicting information in the documentary evidence on forced marriage and the practice of excision among the Malinke in Côte d'Ivoire. [66] There is a credible source that states that Malinke women who are forced to marry are generally between 15 and 35 years of age when they marry and that the frequency of forced marriages among the Malinke does not vary depending on a woman's level of education. I also take into account the testimony of the appellant and her aunt, who confirm that it is a common and traditional practice in their family. [67] As a result of this evidence, I am of the opinion that on a balance of probabilities the appellant will be forced to marry and be circumcised if she returns to her country. [68] The appellant shows a subjective fear of persecution by members of her family, and in my opinion, there is sufficient documentary evidence to conclude there is an objective and serious possibility of persecution. In other words, there is an objective basis for her subjective fear. I read the hearing transcript and analyzed the evidence on the record and, in my opinion, the RPD's finding in this regard is erroneous and incorrect. Contradictions and inconsistencies [69] The RPD pointed out the following contradictions, inconsistencies or discrepancies in the testimony at the hearing and in the appellant's memorandum. The position of the appellant's parents on the marriage [70] The appellant states in her account that her parents were against her marrying her cousin, but her Aunt XXXX testified that the father made a call to Canada to demand she come home and get married. [71] The appellant explained that her father was being pressured by the family, and he had no choice. In her memorandum of appeal, the appellant reiterates that she supposed her parents were against the marriage because they pushed back the date of the wedding as far as possible. She simply deduced this from their behaviour. [72] The RPD was not satisfied with this answer and found that it, along with the other contradictions, undermined the appellant's credibility. [73] This is a context where the RPD could enjoy a meaningful advantage in assessing the appellant's oral testimony as a result of its ability to see, hear and question the witnesses, and I must defer to it. Having said that, in my opinion this aspect of the appellant's account is peripheral to her refugee protection claim and does not justify a negative finding as to her credibility. [74] I also find the appellant's explanation satisfactory, and I also bear in mind that she testified that she and her father had never discussed the marriage. The appellant testified that her mother had cried with her when she found out she had to marry her cousin, and she promised her they would find a solution. I read the transcript and analyzed the evidence on the record, and I find the RPD's finding on this aspect unreasonable in the RAD context. Her sister's status [75] The appellant testified that she did not know whether her 17-year old sister had also been promised in marriage. [76] The RPD was not satisfied with this answer and was of the opinion that the appellant should have known whether her sister had also been promised. Both sisters and the whole family had reportedly discussed it because, based on the documentary evidence, forced marriages among the Malinke can occur when the promised girls are still very young. It was the RPD's opinion that the appellant's sister had not been promised in marriage and, as a result, the RPD did not see why the appellant would be. [77] The appellant did not address this aspect in her memorandum of appeal. [78] In my opinion, this is a context where the RPD could have a meaningful advantage in assessing the appellant's oral testimony as a result of its ability to see, hear and question the witnesses, and I must defer to it. In my opinion, the RPD did not err and it is reasonable for the RPD to conclude that the appellant was not credible when she discussed her sister's status. [79] Although this is also a peripheral aspect of the account, in my opinion it is logical to expect that two sisters close in age, living in the same house with the same parents, would talk to each other about such an intense topic as the threat of forced marriage and excision. In this particular context, the appellant's credibility is undermined. I read the hearing transcript and analyzed the evidence on the record, and in my opinion the RPD's finding in this regard is reasonable in the context of the RAD. Contradictions between Aunt XXXX and the appellant's testimonies [80] The appellant testified that her Aunt XXXX did not know that the appellant was going to be forced to marry, and that she, the appellant, had told her aunt herself. The aunt testified that since it was a family tradition, she knew that the appellant would be subjected to a forced marriage. [81] The RPD found that the contradiction between the aunt's and the appellant's testimonies was significant and that it, along with the contradiction mentioned previously on the position of the appellant's parents on forced marriage, undermined the appellant's credibility. [82] In her memorandum of appeal, the appellant argues that when the two testimonies are compared, and placed within the context of the appellant's culture, any reasonable person would never have reached a similar conclusion. [83] The appellant submits that there is no contradiction with her aunt's testimony. She explains that when the transcript from the hearing is read, it is understood that the appellant provided her aunt with her information and told her personal account, but her aunt would have already known because the appellant was at the age and it was a family tradition. It makes sense that she knew because she was a member of the family and she herself had been threatened with a forced marriage, and that was why she had moved to Canada seven years ago and had been admitted as a refugee. [84] In my opinion, this is a situation where the RPD could have a meaningful advantage in assessing the oral testimony of the witnesses as a result of its ability to see, hear and question them, and I must defer to it. Having said that, in my opinion this aspect of the appellant's account is peripheral to her refugee protection claim, and it does not justify making a negative finding as to her credibility. I also find that the appellant's explanation is satisfactory, and I also take into account the fact that when reading the line of questions and answers between the RPD and her aunt, it seemed to me that there was a miscommunication. I found that the aunt did not really understand where the RPD was going with its questions, and as a result, the answers were unclear. For these reasons, I find the RPD's finding in this regard unreasonable in the context of the RAD. Delay in leaving her country [85] The RPD had concerns about the appellant's delay in coming to Canada. [86] A Canadian visa was issued to her in XXXX 2015. She testified that she finished her diploma in June and that her maternal grandfather was subsequently seriously ill, and the appellant's mother went to care for him in Guinea for several weeks. The appellant confirmed she left Côte d'Ivoire in early XXXX 2015 for Canada and travelled with her mother. [87] The RPD did not accept her explanations. The RPD was of the opinion that if the appellant was in danger, she should have left Côte d'Ivoire well before October, even alone, because she was old enough and was able to after she received her visa in XXXX 2015. She had family in Ottawa and would therefore not have been alone. The RPD felt that the delay in leaving the country undermined the appellant's credibility with respect to her fear in her country. [88] In her memorandum of appeal, the appellant criticizes the RPD for not taking into account her explanations and her personal circumstances. Although she was 18, she was still dependent on her parents, particularly financially. Culturally speaking, she could not leave the country without her parents' blessing even if she had the means to do so. Delay in claiming refugee protection after arriving in Canada [89] The RPD also had concerns about the appellant's delay in claiming refugee protection after arriving in Canada. [90] She waited until January 2016. If the appellant had to get married and undergo excision, she would have claimed refugee protection at the earliest opportunity, particularly given that a close family member, Aunt XXXX, was very familiar with the process because she had gone through it herself. She allegedly told the appellant in January where to go to submit her refugee protection claim. [91] In her memorandum of appeal, the appellant also criticizes the RPD for not taking into account her explanations and her personal circumstances. She reiterates that if she did not submit her refugee protection claim when she arrived in Canada, it was because that was not why she had come to Canada and also because she did not know that the process existed. It was not until she spoke with her Aunt XXXX that the latter gave her the idea to claim refugee protection in Canada. The appellant also states that the RPD should have taken into consideration her explanations for her delay by looking at whether they were probable and plausible, instead of rejecting them outright. [92] Finally, the appellant cites jurisprudence to argue that the delay in making a claim for refugee protection is not a decisive factor in itself and that it is an ancillary consideration. [93] With respect to the issue of both delays, in my opinion it is not a situation where the RPD enjoyed a meaningful advantage in assessing the appellant's oral testimony as a result of its ability to see, hear and question the witness, and I do not owe it any deference. Instead, this is a situation where I must assess the delay itself, as well as the appellant's explanations, and I have the same abilities as the RPD to do so. [94] I accept the appellant's explanation for the delay in leaving her country because, under the circumstances, the threat of a forced marriage was not imminent. It had been agreed that she would finish high school and have time to travel. Given that the appellant's mother had been away for a few weeks because her father had died and the fact that she had to travel with her mother, I am of the opinion that it did not take too long to leave her country. [95] Similarly, I accept the appellant's explanation for the delay in making her refugee protection claim after she arrived in Canada. She arrived in October 2015 and filed her claim in January 2016. I am of the opinion that this is not very long to discover she could claim refugee protection and to do so. Also, her Canadian visitor visa was valid until 2019. [96] In my opinion, the delay in leaving and in claiming refugee protection are not determining factors and should not undermine the appellant's credibility. Credibility - RAD's finding [97] I agree with the appellant that the RPD erred in concluding that, based on the information from the two research reports by the IRB Research Directorate, the profile of girls likely to be subjected to forced marriages and excision in the Malinke ethnic group in Côte d'Ivoire does not match the appellant's profile. [98] More specifically, the RPD erred by relying on certain parts of the reports without mentioning or taking into consideration other parts which supported the appellant's allegations. There were inconsistencies in the reports, and at the time it was impossible to reach a definitive conclusion on the refugee protection claim based solely on that documentary evidence. [99] With respect to the credibility findings based on contradictions and inconsistencies, I disagree with the RPD on most of its findings. More specifically, with respect to the position of the appellant's parents on the marriage, the contradictions between the testimonies of Aunt XXXX and the appellant, and the delays in leaving and claiming refugee protection. In my opinion, they are findings peripheral to the principal basis of the appellant's fear and her refugee protection claim which do not justify making a negative finding as to her credibility or rejecting her refugee protection claim. The contradictions and inconsistencies raised were not significant enough to find that she was not credible on a balance of probabilities. [100] In analyzing all the evidence, including the testimony of the appellant and her aunt, I found that the answers and explanations were satisfactory. When I read the transcript from the hearing, I noted that the appellant answered the questions spontaneously and directly by providing details when they were requested, and honestly, based on her knowledge, as best she could, given her level of education, life experience and cultural background. [101] However, I agree with the RPD that the appellant was not credible when she testified that she did not know whether her 17-year old sister had also been promised in marriage. The appellant's credibility is undermined on that particular point. Having said that, it is not enough to confirm the RPD's determination of the appellant's refugee protection claim. State protection and internal flight alternative (IFA) [102] I disagree with the RPD on the topic of state protection because it argues that, since marriage without consent and excision are illegal in Côte d'Ivoire, the appellant can file a complaint with the authorities. [103] In the documentary evidence cited above, the judicial recourse procedure in the case of excision is described as theoretical.28 The same report also states that, according to tradition, a young girl has no right to refuse the marriage given the social and family consequences that may result from the refusal.29 [104] For this reason, I do not consider there is adequate state protection for the appellant should she return to Côte d'Ivoire. [105] Jurisprudence has established a two-prong test for assessing the possibility of an IFA. First, the proposed location for the IFA must be safe. The test is to determine whether there is a serious possibility of persecution or whether it is more likely than not that she would be personally subjected to a risk to her life or to a risk of cruel and unusual treatment or punishment in the locations identified as IFAs. Second, it must not be objectively unreasonable for a refugee claimant to find refuge there. [106] For the purposes of this case and my decision, I will focus on the second prong. Courts have indicated many times that the standard for finding an IFA unreasonable is rigorous. In Ranganathan, the Federal Court of Appeal states that: [There is] a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions. The absence of relatives in a safe place, whether taken alone or in conjunction with other factors, can only amount to such condition if it meets that threshold, that is to say if it establishes that, as a result, a claimant's life or safety would be jeopardized.30 [107] A Response to Information Request prepared by the IRB Research Directorate contains information on the situation of women living alone, particularly in Abidjan and Bouaké. It refers to women who, because they attended school for a long time, do not need a man to support them, especially women who are more than 30 years old. It indicates that where access to housing and loans is concerned, the key criterion is whether they are able to pay and reimburse the funds. The report states that women who fit this profile are able to live alone in large cities like Abidjan and Bouaké but not in the villages, and the impediment is instead whether she has the financial means to support herself.31 [108] The appellant does not fit the profile established in this document. She does not have her own financial means, she has no post-secondary education, and she is XXXX years old. In my estimation, she does not have the means to live alone elsewhere in her country. [109] A 2014 report on Côte d'Ivoire states that: Any consideration of the physical integrity of Ivoirian women and girls must take into account the impact of the civil conflict. Despite considerable progress since the end of the violent post-election crisis in 2011, on-going instability in the country contributes towards a generalized culture of violence and impunity, meaning that the laws in place to protect women and girls from violence are less effective.32 [110] A Human Rights Watch report indicates there is a lack of capacity to respond to rampant criminality: Victims of crime and Ivorian and international officials told Human Rights Watch that the security forces routinely fail to protect residents from criminality and too infrequently conduct investigations after it happens.33 [111] In the case at hand, the documentary evidence on Côte d'Ivoire describes conditions which would put the appellant's life or safety at risk. For that reason, I find that there is not an IFA for the appellant elsewhere in her country. It would be objectively unreasonable to force her to live elsewhere, alone, without her family's financial support, at her age and level of education. [112] Finally, in my opinion, the appellant established that there is a serious possibility of persecution should she return to Côte d'Ivoire. CONCLUSION [113] For these reasons, and after reading the RPD's reasons for decision, considering the RPD record and the appellant's record, reading the transcript and conducting an independent assessment of the record, pursuant to subsection 111(1) of the IRPA, I set aside the RPD's determination that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" under section 96 and subsection 97(1) of the IRPA,34 and I substitute the determination which, in my opinion, should have been made. [114] The RPD erred and its decision is incorrect. [115] The appellant is a "Convention refugee" under section 96 of the IRPA. [116] The appeal is allowed. Julie Corry Me Julie Corry January 31, 2018 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 96 and subsection 111(1). 2 Appellant's Basis of Claim Form (BOC Form), signed on January 26, 2016, including a statement by the appellant. 3 RPD reasons for decision, pages 3 to 11 of the RPD record. 4 Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. 5 Idem, paragraph 64. 6 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 7 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, subparagraph 3(3)(g)(iii). 8 Appellant's memorandum, paragraph 2. 9 Rules, subparagraph 3(3)(g)(iii). 10 IRPA, subsection 110(4). 11 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCR 93, paragraph 103. 12 Idem. In paragraphs 59, 64, 78 and 103, the Honourable Justice Gauthier explains what she means by this "correctness" standard of review. 13 X(Re), 2017 CanLII 53034 (CA IRB). The three-member panel analyzes the deference the RAD owes to the RPD with respect to findings of credibility related to the oral testimony. See, among others, paragraphs 72 and 116. 14 Idem. 15 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCR 93, paragraph 103. 16 Idem. 17 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. This Guideline is available on the IRB website. 18 Manege v. Canada (Minister of Citizenship and Immigration), IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, at paragraphs 29-32. 19 UNHCR, Beyond Proof. Credibility Assessment in EU Asylum Systems, May 2013, 286 pages, p. 70. 20 Document 5 on the RPD record: CIV105478.FE, March 24, 2016; Côte d'Ivoire: The practice of excision among the Malinke, including the frequency and age at which the excision is practiced; whether it is customary for a young woman to be excised before marrying; legislation on excision; the possibility of refusing excision and the consequences of such refusal; recourse available (2014-2016). 21 Document 5 on the RPD record: CIV105479.FE, March 24, 2016; Côte d'Ivoire: Forced marriage, including among the Malinke; the prevalence of forced marriage and state protection available; the possibility for a young woman to refuse the man arranged for her (2014-March 2016). 22 RPD reasons and decision, pages 3 to 11 of the RPD record, paragraphs 17-18. 23 Idem, paragraph 22. 24 Appellant's memorandum, paragraphs 7-8. 25 Document 5 on the RPD record: CIV105479.FE, March 24, 2016; Côte d'Ivoire: Forced marriage, including among the Malinke; information on the prevalence of forced marriage and state protection available; the possibility for a young woman to refuse the man arranged for her (2014-March 2016), pages 3-4. 26 Idem, page 4. 27 Document 5 on the RPD record: CIV105478.FE, March 24, 2016; Côte d'Ivoire: The practice of excision among the Malinke, including the frequency and age at which the excision is practiced; whether it is customary for a young woman to be excised before marrying; legislation on excision; the possibility of refusing excision and the consequences of such recourse; resourse available (2014-2016), pages 9-10. 28 Document 5 on the RPD record: CIV105478.FE, March 24, 2016; Côte d'Ivoire: The practice of excision among the Malinke, including the frequency and age at which the excision is practiced; whether it is customary for a young woman to be excised before marrying; legislation on excision; the possibility of refusing excision and the consequences of such refusal; recourse available (2014-2016) pp. 9-10. 29 Document 5 on the RPD record: CIV105479.FE, March 24, 2016; Côte d'Ivoire: Forced marriage, including among the Malinke; the prevalence of forced marriage and state protection available; the possibility for a young woman to refuse the man arranged for her (2014-March 2016) p. 4. 30 M.C.I. v. Ranganathan, Rohini (F.C.A., No. A-348-99), Létourneau, Sexton, Malone, December 21, 2000. 31 National Documentation Package (NDP) on Côte d'Ivoire, December 21, 2017, Tab 5.1, CIV105508.FE, May 2, 2016; Côte d'Ivoire: Situation of educated women living alone, whether single or divorced, particularly in Abidjan and Bouaké; whether they can find work and housing; support services available to them (2014-April 2016). 32 NDP on Côte d'Ivoire, December 21, 2017, Tab 5.2, Organization for Economic Cooperation and Development, "Cote d'Ivoire. Social Institutions and Gender Index 2014." December 22, 2014, p. 3. 33 NDP on Côte d'Ivoire, December 21, 2017, Tab 9.2, Human Rights Watch, "To Consolidate This Peace of Ours: A Human Rights Agenda for Côte d'Ivoire," December 8, 2015, pp. 58 and following. 34 IRPA, sections 96 and 97 and subsection 111(1). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB6-02718 22 RAD.25.02 (September 11, 2016) Disponible en français