MB6-02353

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 / Dossier de la SAR : MB6-02353 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision June 7, 2017 Date de la décision Panel Me Julie Corry Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Odette Desjardins Conseil(s) (de la/des) personne(s) en cause Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of the Republic of Côte d'Ivoire, is appealing a decision of the Refugee Protection Division (RPD). [2] She argues that the RPD committed errors when analyzing her prospective risk of return. [3] The appellant included an affidavit1 in her appeal record and requested a hearing in order to [translation] "allow for an opinion to be formed concerning the appellant's credibility."2 DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the RPD decision, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" in accordance with section 97 of the IRPA.3 [5] The RPD did not err in its analysis of the prospective risk of return and its decision is correct. [6] The appeal is dismissed. BACKGROUND Summary of alleged facts [7] The appellant was threatened by her paternal uncle, who became the head of the family when her father died. The uncle stated that he had received a dowry for the appellant and that he had promised her hand in marriage to a friend of the family. The appellant disobeyed him and began living with a man of her choosing, with whom she then had two children. [8] When their first child was born, the appellant went to live in San Pedro for nine months with her mother-in-law, and she lived with her common-law partner at a new address until she left for Canada. Her common-law partner still lives at the same address. The uncle levelled his threats via the appellant's older sister and, on two occasions, he spoke to the common-law partner in the street, near where he worked. He never spoke to the appellant directly. [9] She lived in hiding and limited how often she left the house. In the past, before having children and the issues with her uncle, the appellant worked in a large market in XXXX, where she sold meat and performed traditional dance. Since then, she has stopped working and dancing at public events. RPD decision [10] The RPD hearing took place on March 17, 2016, and the decision rejecting her refugee protection claim was rendered on April 14, 2016.4 The RPD determined that the appellant is not a Convention refugee or a person in need of protection. [11] The RPD concluded that the appellant had failed to establish, through objective evidence, that her uncle has the ability and the resources needed to find her. The panel concluded that the appellant does not face a prospective risk, nor is there a serious possibility of persecution if she were to return to Côte d'Ivoire. Appellant's arguments [12] The appellant is asking that the RPD decision be set aside and her appeal allowed. She argued that the panel erred in its analysis of the prospective risk, which constitutes an error of fact and of law. She is of the opinion that the RPD's conclusion is incorrect and reviewable by the RAD. PRELIMINARY ISSUES: New evidence [13] The appellant included an affidavit in her appeal record and mentions it in paragraph 4.5 She did not explain why she included the affidavit or whether it provides new evidence. She did not formally request that it be admitted as new evidence. To begin, it does not comply with subrule 3(3)(g)(iii) of the Refugee Appeal Division Rules (the Rules)6 because she does not explain how it complies with the criteria set out in subsection 110(4) of the IRPA.7 [14] Second, subsection 110(4) of the IRPA stipulates 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. [15] The affidavit is dated subsequent to the rejection of the claim and clearly was not part of the RPD record. The contents of the affidavit add absolutely no new objective evidence to the effect that the appellant faces a serious possibility of persecution if she were to return to Côte d'Ivoire. In fact, the text of the affidavit is identical to the annex to the Basis of Claim Form (BOC Form), but is simply dated six months later.8 [16] Therefore, the affidavit is not new evidence within the meaning of subsection 110(4) of the IRPA. Request for a hearing [17] At paragraph 10 of the appellant's record, she requests a hearing in order to [translation] "allow for an opinion to be formed concerning the appellant's credibility."9 However, her credibility was not questioned in this case because the RPD found the appellant to be entirely credible.10 I listened to the recording of the hearing and I also find the appellant credible. [18] Pursuant to 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 the answer is yes, the RAD may then hold a hearing. [19] The onus rests with the RAD to determine whether the tests set out in subsection 110(6) of the IRPA have been met.11 One of the determining factors is that one of the pieces of evidence presented on appeal must have been found admissible.12 However, in this case, the appellant's affidavit dated May 30, 2016, was not admitted. Consequently, there is no cause to hold a RAD hearing. SCOPE OF THE APPEAL [20] According to the Federal Court of Appeal in Huruglica,13 the RAD is to review the RPD's decisions by applying the correctness standard to findings of fact and mixed fact and law that do not raise any questions about the credibility of the oral testimony, as is the case here. [21] I conducted an independent analysis of all of the evidence on the record in order to form my own opinion on this refugee protection claim and to determine whether the RPD decision is well founded. DETERMINATIVE ISSUE [22] Is there an objective, serious possibility of persecution if she were to return to Côte d'Ivoire? More specifically, is there objective evidence that the appellant's uncle has the ability, the resources or the intention of persecuting her? ANALYSIS [23] Guideline 414 must be taken into consideration in appropriate cases. It is incumbent on decision-makers to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding issues of violence against women. Decision-makers must be particularly sensitive to the difficulty that certain women who are victims of or who fear becoming victims of violence have when giving testimony. However, 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.15 [24] In this case, I note that the appellant is a woman who is afraid of being persecuted for having violated certain customs that discriminate against women in her country, and I am taking that into consideration. [25] As mentioned earlier, credibility is not an issue in this case because the RPD found the appellant to be entirely credible.16 I listened to the recording of the hearing and I, too, find the appellant credible. [26] However, having read the documentary evidence and heard the testimony, I am of the opinion that the appellant did not objectively establish that there is a serious possibility of persecution if she were to return to Côte d'Ivoire. She has demonstrated a subjective fear, but there is no objective basis for it. The objective basis of the risk of persecution must be assessed prospectively at the time of the decision. [27] To meet the burden of proof that she satisfies the definition of refugee, the appellant must establish, on a balance of probabilities, that she has a well-founded subjective fear of persecution. A subjective fear of persecution is based on the assessment of the person's credibility while an objective fear is usually established by documentary evidence regarding the country conditions.17 Before the RPD, the appellant submitted the index of the National Documentation Package for Côte d'Ivoire as well as some documents about the situation for women in Côte d'Ivoire, and I took them into consideration. [28] In her BOC Form,18 the appellant stated that her uncle disagreed with her and was furious when he learned that she was dating a man in 2009. The uncle threatened the appellant and her common-law partner, stating that he had received a dowry for her and had promised her to a friend of the family, a man in his 50s who was married and had several children. The appellant was pregnant and went to live with her common-law partner. They had their first child in June 2010. [29] The uncle stated that the appellant would marry the friend of the family, either voluntarily or by force. He did not know where the appellant was living, but he spoke with other family members, and her older sister in particular. He used her older sister to put family pressure on her. The uncle threatened the appellant: if she did not do as he wished, she would join her deceased parents, and he could get help finding her. [30] Knowing where her common-law partner lived, her uncle went to see him on two occasions in 2011 to threaten him. The common-law partner moved to a new address in XXXX, another neighbourhood in the XXXX commune in Abidjan, and he has not seen the uncle since then. The appellant limited her excursions and stopped dancing at public events. [31] The appellant stated that it had become a point of honour for her uncle and family. Her older sister tried to negotiate with the uncle, but he refused, stating that the appellant had dishonoured the family. [32] In December 2014, the appellant had her second child with her common-law partner, still in Abidjan. She was approached about travelling to Canada to perform traditional dance and, two months after she gave birth, she began rehearsals but limited how often she left the house for those rehearsals. For the trip, the appellant obtained a Canadian visa, and her airline ticket was paid for by the dance company, XXXX. She left for Canada in July 2015 and has been here since then. [33] The uncle learned from the older sister that the appellant had had a second child and, later, that she had gone to Canada. He reacted violently and was furious. He told the older sister that the appellant had signed her death warrant and that her death was the only way to restore the family's honour. He stated that he would know when she was coming back to settle the situation once and for all. [34] During the RPD hearing, the appellant stated that she has not seen her uncle since she left his home in 2009. After her first child was born in June 2010, she sought refuge at her mother-in-law's home in San Pedro for nine months. In June 2011, she returned to Abidjan and was living with her common-law partner in XXXX, another neighbourhood in the XXXX commune. Her common-law partner moved to that address because of two instances when he was threatened by the uncle near his workplace in 2011. Since those threats and the move to XXXX, the couple has not seen or been bothered by the uncle, who still lives in Abidjan in the same commune, XXXX. The common-law partner still works at the same place. [35] The appellant testified that she has been living in hiding since 2009, and that she can no longer live that way. She believes that if she were to return to her country, her uncle could find her. She repeated that she knows her persecutor well and, sooner or later, he would manage to track her down. [36] The RPD concluded that the uncle does not have the ability and resources needed, or the intention, of finding the appellant, and that the appellant is simply hypothesizing and speculating when she alleges that her uncle would be able to find her. [37] The appellant did not submit arguments against the RPD conclusion and did not mention any other incidents involving her uncle. Consequently, I am of the opinion that she did not establish that the RPD findings on this point are erroneous, as the evidence does not allow for a different conclusion. I am of the opinion that this is insufficient to conclude that there is an objective, serious possibility of persecution. [38] Although the appellant is credible and has demonstrated a subjective fear of persecution by her uncle, he has not done anything for four years even though he had the possibility of finding her in XXXX. The uncle knew where the common-law partner was working and could have followed him to then find the appellant. He did not do that and, in my opinion, that demonstrates that he does not have the intention, ability or resources to truly harm the appellant, even if he has spoken of that to her older sister. CONCLUSION [39] Having read the RPD reasons for decision, listened to the recording of the hearing and conducted an independent assessment of the record, I agree with the RPD. The RPD did not err in its analysis of the prospective risk of return, and its decision is correct. [40] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD decision, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [41] The appeal is dismissed. Julie Corry Me Julie Corry June 7, 2017 Date IRB translation Original language: French 1 Affidavit signed on May 30, 2016, by the appellant, XXXX XXXX XXXXXXXX XXXX XXXX. 2 Appellant's record, dated May 30, 2016, para. 10. 3 Immigration and Refugee Protection Act, S.C. 2001, c.27, sec. 96, 97 and para. 111(1)(a). 4 RPD Reasons and Decision, pp. 3 to 8 of the RPD record. 5 Appellant's record, dated May 30, 2016, para. 4. 6 Refugee Appeal Division Rules, SOR/2012-257, subrule 3(3)(g)(iii). 7 Immigration and Refugee Protection Act, subsection 110(4). 8 Appellant's Basis of Claim Form (BOC Form) signed December 8, 2015. 9 Appellant's record, dated May 30, 2016, para. 10. 10 RPD's reasons and decision, pp. 3 to 8 of the RPD record, paras. 10-12. 11 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, para. 11. 12 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and 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...' (subsection 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)." 13 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 14 Immigration and Refugee Board of Canada (IRB), IRB Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. This guideline is available on the IRB website. 15 Manege v. Canada (Minister of Citizensahip and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, paras. 29 to 32. 16 RPD Reasons and Decision, pp. 3 to 8 of the RPD record, paras. 10 to 12. 17 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM4087-08, Beaudry, April 23, 2009; 2009 FC 398, at para. 16. 18 Appellant's BOC Form, signed on December 8, 2015. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB6 02353 9 RAD.25.02 (September 11, 2016) Disponible en français