TB5-05245

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 : TB5-05245 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 21, 2015 Date de la décision Panel Lesley Mason Tribunal Counsel for the person(s) who is(are)the subject of the appeal Solomon Orjiwuru Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), who claims to be a citizen of Cameroon, appeals the decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. The Appellant asks the Refugee Appeal Division (RAD) to set aside the RPD's decision and replace it with a determination that the Appellant is a Convention refugee or a person in need of protection or in the alternative, that the matter be referred back to a different member of the RPD for re-determination. [2] The Appellant, pursuant to subsection 110(4), provided new evidence. The Appellant requests, in accordance with subsection 110(6) of the Immigration and Refugee Protection Act (IRPA), an oral hearing. DETERMINATION [3] Pursuant to s. 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor is she a person in need of protection. The RAD dismisses the appeal. Background [4] The Appellant alleges that she entered a relationship with XXXX XXXX at the time she began her university studies in 2009. Mr. XXXX became verbally and physically abusive toward the Appellant after she became pregnant in XXXX2012. When in XXXX2013 Mr. XXXX returned home drunk, he began to assault the Appellant because she questioned his behaviour. At one point Mr. XXXX pushed the Appellant down a staircase and she suffered a miscarriage. The Appellant sought help from a neighbour who took the Appellant to a hospital where she remained for one week. Subsequently, the Appellant's parents talked to Mr. XXXX, but he warned them never to interfere in his private family affairs. The Appellant reported the incident to the police but they advised her to resolve the matter privately. [5] The Appellant returned to live with Mr. XXXX after a few months. He continued his abusive behaviour. The Appellant sought the help of family members and friends but to no avail. Mr. XXXX beat the Appellant and threatened her life when he learned she had reported his behaviour to a friend. Mr. XXXX poisoned the Appellant's dog. [6] In XXXX2014, Mr. XXXX locked the Appellant in their home for three days. She escaped on XXXX XXXX, 2014 and hid at the home of a friend. Together they reported Mr. XXXX to the police but the police refused to intervene. The Appellant's friend suggested that she seek admission to Canada as a means to escape further persecution. The Appellant applied and was accepted as a student at XXXX College. [7] The Appellant arrived in Canada on December 13, 2014 using her own passport and a valid Canadian visa. She made a claim for refugee protection on February 5, 2015. [8] The Appellant's refugee determination hearing was held on April 2, 2015. In a written decision issued on May 6, 2015, the RPD rejected the claim. The RPD member found the determinative issue to be the credibility of the Appellant. [9] Appeal pleadings were received on June 22, 2015. In her appeal, the Appellant argues that the RPD member's credibility findings were based on her misstatement and misapprehension of her evidence. Admissibility of New Evidence Presented on Appeal [10] Section 110(4) of the IRPA indicates 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."1 [11] The Appellant submitted the following new evidence. 1) An affidavit from XXXX XXXX, dated June 9, 2015; 2) An affidavit of XXXX XXXX, dated June 9, 2015; 3) A police Report, dated June 4, 2015; 4) A copy of the National Identity Card of XXXX XXXX XXXX; 5) Three photographs; 6) An e-mail message from XXXX XXXX, dated July 6, 2015; 7) An envelope mailed in Cameroon on June 17, 2015. [12] The RAD does not admit the National Identity Card for the following reasons. The card is not the original as required by Rule 42. There is no indication as to how this copy was obtained. The card provides no evidence regarding the lack of a viable Internal Flight Alternative (IFA) in Yaoundé. The card also has no relevance to the issue of IFA. [13] The RAD does not admit the photographs for the following reasons. Each photograph contains a man and a woman; there is no information regarding the identities of the couple in the photographs. Two of the three photographs are dated June 2013; there is no explanation as to why these photographs were not made available for the Appellant's hearing before the RPD. In any event, the photographs provide no evidence regarding the lack of a viable IFA in Yaoundé. [14] The RAD will assess the probative value of the remaining documents within the analysis found below. ROLE OF THE RAD [15] The Federal Court decision in Huruglica2 has provided the RAD with guidance with respect to the role of the RAD. In this decision, Justice Phelan states: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". ANALYSIS OF THE EVIDENCE [16] The Appellant alleges that the RPD made errors in the assessment of the evidence related to its credibility findings. [17] However, after a review of the complete record, including a recording of the hearing, the RAD finds there was evidence before the RPD of the existence of the determinative issue of an accessible and reasonable Internal Flight Alternative (IFA). [18] Although the RPD questioned the Appellant about the existence of an IFA, the RPD made no findings with respect to the IFA. The RAD has the power to confirm or substitute the determination of the RPD under subsections 111(1)(a) and 111(1)(b) of IRPA, respectively, or send the matter back, under paragraph 111(1)(c) if the conditions in subsection 111(1)(2) are met. In confirming a determination, just as in substituting, the RAD is not bound by the reasoning in the RPD's decision. This is evident from the use of the word "determination" in paragraphs 111(1)(a) and (b). Further, the restrictions on remittal in subsection 111(2) suggest that Parliament's intent was to have the RAD finalize refugee protection claims where it can do so fairly, including by confirming a determination on alternative grounds. [19] The issue of IFA was fully canvassed at the RPD hearing with the Appellant, and the Appellant had the opportunity to make submissions at the RPD hearing with respect to IFA. The RAD also invited the counsel for the Appellant to provide written submissions on the issue of IFA in addition to the oral submissions he provided at the hearing before the RPD. On August 10, 2015 counsel for the Appellant provided written submissions on the issue of IFA. The RAD has considered the submissions in its decision. [20] Because the RAD is able to make a decision on the IFA issue, it is unnecessary to decide if the RPD made the errors alleged by the Appellant. Accordingly, the RAD finds that the application of a Standard of Review is not necessary in this case, as the RAD is conducting its own assessment of the viability of an IFA based upon the record. Furthermore, in making a determination on the viability of an IFA, the RAD is not relying on credibility findings made by the RPD. [21] The RAD focused on whether the Appellant has an accessible and viable IFA in Yaoundé, Cameroon as identified during the hearing before the RPD. [22] In order to determine whether a viable IFA exists, the RAD must consider a two prong test. The basis for this two-pronged test is the cases of Rasaratnam3 and Thirunavukkarasu.4 [23] Firstly, the Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.5 [24] Secondly, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the claimant, for him or her to seek refuge there.6 [25] Appellants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and specifically in the potential IFA areas named. [26] In its decision, the RAD has been sensitive to the situation of women in assessing whether it is reasonable for an Appellant to relocate. The RAD has considered the case of Syvyryn,7 in which the Federal Court of Canada stated that decision-makers must consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship and that decision-makers must take into account religious, economic and cultural factors. [27] The RAD finds that, on a balance of probabilities, there is no serious possibility that the Appellant would be persecuted in Cameroon if she were to relocate to Yaoundé, Cameroon. The RAD's reasons are as follows. [28] In coming to this decision, with respect to the first prong, the RAD considered a number of factors. According to the United States (US) Department of State (DOS) report of 2014, the constitution and law provide for freedom of internal movement, foreign travel, emigration, and repatriation.8 However, according to the DOS report, these rights are sometimes impeded by such circumstance as security forces at roadblocks and checkpoints in cities and on most highways extorting bribes and harassing travelers which the RAD finds does not rise to the level of persecution.9 Yaoundé has a major airport and may be accessed directly from international destinations.10 [29] At the hearing, the Appellant testified that she fears abuse at the hands of her former common-law spouse, XXXX XXXX. When asked if she could relocate to Yaoundé, the Appellant testified that Mr. XXXX always had a way to find her. She testified that when she had hidden at her friend, XXXX house, he came looking for her there. She testified that he has money to mount an investigation to find her and that he had, in the past, threatened to do so. During the hearing, the RPD member reminded the Appellant that family members, including her father, had supported her by sending affidavits for her hearing and by financing her travels to Canada. The RPD then asked if her family could not help her in her problems with Mr. XXXX. The Appellant testified that they had tried and failed many times before. Upon being asked if her father could not protect her against Mr. XXXX, the Appellant testified that her father had tried in the past but Mr. XXXX is an influential man. According to the recording of the hearing, when asked to explain Mr. XXXX influence, the Appellant testified that he was wealthy and super rich and this would allow him to cover up any crime he might commit. [30] In written submissions counsel argued that the Appellant would be found by Mr. XXXX in Yaoundé because when the Appellant tried to remove herself from the epicentre of her problem, Mr. XXXX, the agent of persecution, sought her at the home of her parents, tracked her down at her cousin's home and searched for her at the home of a friend in Douala.11 Counsel submits that Mr. XXXX could use his wealth to locate the Appellant. [31] The RAD does not find the Appellant's explanations satisfactory and the RAD, respectfully, does not agree with counsel's submissions. The RAD's reasons are as follows. Mr. XXXX and the Appellant were in a relationship for approximately four years at the time he searched for her at her parents' home, the home of her cousin and the home of her friend XXXX. The RAD, thus, finds in reasonable that Mr. XXXX searched for the Appellant at the homes of persons known to the Appellant. Other than the Appellant's oral testimony, there was no persuasive evidence that Mr. XXXX is an influential man who can mount investigations or circumvent the authorities. There is no persuasive evidence that Mr. XXXX has large resources and the wherewithal to seek the Appellant out in a country of over 475,000 square kilometres and with a population of over 23 million people.12 Yaoundé is approximately 400 kilometres from Bamenda where the Appellant lived with Mr. XXXX and where her family members reside. Yaoundé is approximately 250 kilometres from Douala where the Appellant was hiding, but not found by Mr. XXXX, when he attended the home of the Appellant's friend in search of her. [32] The Appellant does not have a high profile in Cameroon. [33] The Appellant has been out of the country for more than one and a half years. The RAD notes the obvious fact that Mr. XXXX does not have to be advised about her return to the country and would, therefore, have no knowledge of her whereabouts in Yaoundé. If the Appellant does not wish to inform others of her presence in Yaoundé, there is no reason to believe that her location would be found out. Yaoundé is the largest city in Cameroon with a population of almost 3 million.13 Thus, the Appellant failed to provide a reasonable explanation as to why she believes she would be discovered and/or persecuted in Yaoundé. [34] The RAD thus, finds, on a balance of probabilities, that there is no serious possibility of the Appellant being persecuted in Yaoundé. [35] With respect to the second prong, the RAD is not persuaded that it would be unreasonable for the Appellant to live in Yaoundé. The Appellant has provided no persuasive evidence that she would not be familiar with cultural issues and norms in Yaoundé. According to the Appellant's testimony she left her family home to attend university in another city when she was seventeen. The RAD notes that the Appellant has travelled on her own to Canada and settled in Toronto, thus, illustrating her flexibility. Therefore, the RAD is satisfied that it would be reasonable for the Appellant to adapt to new surroundings in Yaoundé. [36] The RAD finds it reasonable that the Appellant would be familiar with religious practices in Yaoundé. The Appellant stated in her Basis of Claim (BOC) Form that she is a Christian.14 The documentary evidence indicates that 69 per cent of the population is Christian and Christians are concentrated primarily in the southern and western regions,15 where Yaoundé is located.16 The Appellant testified at her hearing before the RPD in the English language. English is one of the two official languages of Cameroon.17 The RAD is therefore satisfied that the Appellant would be familiar with language and religious practices in Yaoundé. [37] Although economic concerns are not included in the grounds for refugee protection, it is a concern for a woman living on her own in Cameroon. The RAD must consider this in terms of the IFA being reasonable in all circumstances. Information contained in the independent documentary evidence indicates that is it possible for a woman to live alone in Cameroon's large cities, such as Yaoundé, as long as they have the necessary resources; the level of education influences the quality of the employment.18 The RAD notes that the Appellant testified that her family provided the necessary financial resources for her to attend university in Cameroon for four years and for her travels to Canada. The Appellant provided as evidence for her hearing before the RPD an affidavit from her father, XXXX XXXX XXXX, in which he affirms that he has sufficient funds to sponsor the Appellant's post-secondary studies in Canada and he owns various landed properties valued to 50,000,000 FCFA (approximately $600,000 CAD).19 According to the recording of the hearing before the RPD, the Appellant testified that she remains in contact with her family in Cameroon. She made no allegations that her family would not continue its financial support. In any case, the RAD notes that the Appellant is well-educated; she completed seventeen years of education in Cameroon and was awarded a Bachelor's degree in XXXX XXXX in 2013.20 According to the independent documentary evidence, females in Cameroon complete, on average, ten years of education.21 The RAD, thus, finds that the Appellant is educated well beyond the average female in Cameroon. There is no persuasive evidence to suggest that she would be at a greater disadvantage of finding employment than any other well-educated Cameroonian woman in Yaoundé. [38] The Appellant is unmarried. According to the independent documentary evidence, a report published in March 2012 by the National Institute for Statistics (INS) of Cameroon, states that the proportion of female heads of household in 2010 was 27.5 percent in urban areas. Female "head of household" refers to single, divorced, widowed, married women or women living common law and who are responsible and the sole financial provider of their family.22 [39] Information provided in a Response to Information Request (RIR) indicates that there are various organizations available to assist abused women.23 1) A report submitted by the Committee on the Elimination of Discrimination Against Women (CEDAW), which was prepared with input from a committee of government and civil society representatives, indicates that victims of domestic violence who are referred to the Ministry of Women's Empowerment and the Family are offered "health, financial, psychosocial and legal assistance" 2) The Association to Fight Violence Against Women (ALVF) and other organizations provide medical, psychosocial and legal services to victims of violence. In addition, the ALVF provides free legal counselling and advice. 3) The Cameroon Association of Female Jurists (Association camerounaise des femmes juristes, ACAFEJ) is a non-profit NGO located in Yaounde. One of its objectives is to "fight and denounce all discrimination against women and children". The ACAFEJ offers free legal counselling at three assistance centers located in Bafoussam, Douala and Yaounde. [40] The Appellant provided evidence for her hearing before the RPD in the form of affidavits in support of her claim from her cousin, XXXX XXXX XXXX,24 from her sister, XXXX XXXX,25 from XXXX XXXX XXXX the brother of XXXX XXXX,26 from XXXX XXXX XXXX a friend of XXXX XXXX,27 from her friend, XXXX XXXX, with whom she hid,28 from a neighbour, XXXX XXXX29, from her father, XXXX XXXX XXXX,30 and from her mother, XXXX XXXX,31. As stated above, the Appellant provided new evidence for her appeal which includes affidavits in support of her claim from her sister, XXXX, and from her mother32 as well as other documents supplied by her sister XXXX. The RAD, thus, infers that the Appellant has numerous people in Cameroon, including at least three immediate family members, who provide her with moral support. [41] Based upon the Appellant's age, education, marital status, and language capabilities stated earlier, and the various agencies available to assist her, the RAD finds there are no serious social or economic barriers to the Appellant relocating to Yaoundé. As referred to above, the documentary evidence before the RAD on internal relocation in Cameroon indicates that a woman in the Appellant's position can relocate to Yaoundé and find employment, shelter and various types of support. The RAD has also found that the Appellant would have moral support from various friends and family members. Therefore, the RAD finds that it would not be unreasonable, in all circumstances, including those particular to the Appellant, for her to seek refuge in Yaoundé. [42] The RAD finds that the Appellant has a viable IFA in Yaoundé, Cameroon. New Evidence [43] The RAD gives little evidentiary weight to the affidavits33 from the Appellant's sister and mother for the following reasons. The affidavits provide information regarding XXXX XXXX actions with regards to the Appellant since she left Cameroon; he has approached the Appellant's sister and mother and made threats in an attempt to discover the whereabouts of the Appellant. The affidavits do not indicate that Mr. XXXX has been provided with the Appellant's whereabouts. The RAD finds it reasonable to assume that the Appellant's sister and mother would not divulge the Appellant's whereabouts in the IFA of Yaoundé. The location of the IFA is at a considerable distance from the residences of the Appellant's sister and mother where Mr. XXXX has made inquiries. [44] The Appellant provided a Police Report, dated June 4, 2015, in which her sister and mother reported an assault on the Appellant's sister by XXXX XXXX.34 The RAD gives little evidentiary weight to this document for the following reasons. The report provides no evidence regarding the lack of a viable IFA in Yaoundé. The RAD notes that the police took action against Mr. XXXX. The RAD notes that the action of the police was such that the police would not allow Mr. XXXX to harass the family to disclose the Appellant's whereabouts. Section 97 (1) [45] The Appellant advanced no persuasive evidence to suggest she would face any danger, that is more likely than not, of torture within the meaning of Article 1 of the Convention against torture. [46] Given the finding above, that the Appellant has an IFA in Cameroon, the RAD finds that her removal would not subject her personally to a risk to her life, or of cruel and unusual treatment or punishment if she returns to Cameroon. DISPOSITION [47] The RAD finds that there is an internal fight alternative for the Appellant. Since IFA is a determinative issue, the RAD concurs with the RPD's determination to reject the Appellant's refugee claim, but for different reasons. CONCLUSION [48] The Appellant requested an oral hearing to address plausibility or credibility findings of the RPD. Given that the new evidence was given little or no weight and that the RAD's decision is not based upon credibility, the request for an oral hearing is denied. [49] Pursuant to Section 111(1)(a) of IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [50] The appeal is dismissed. (signed) "Lesley Mason" Lesley Mason August 21, 2015 Date 1 Immigration and Refugee Protection Act,S.C. 2001, c. 27 2 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799 3 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) at 710 4 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.) 5 Rasaratnam, Sivaganthan v. M.E.I. 6 Thirunavukkarasu, Sathiyanathan v. M.E.I. 7 Syvyryn, Ganna v. M.C.I. (F.C., no. IMM-1569-09), Snider, October 13, 2009, 2009 FC 1027 8 Exhibit RPD-1, RPD's Record, Exhibit 3, National Documentation Package (NDP) for Cameroon (30 April, 2014), item 2.1 9 Ibid. 10 Ibid., item 1.1 11 Exhibit PH-1 12 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Cameroon (30 April, 2014), item 1.3 13 Ibid. 14 Exhibit RPD-1, RPD's Record, Exhibit 2, p. 12, question 1(f). 15 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Cameroon (30 April, 2014), item 12.1 16 Ibid., item 1.1 17 Ibid., item 1.3 18 Ibid., item 5.8, CMR104129.FE 19 Exhibit RPD-1, RPD's Record, Exhibit 7, p. 179 20 Exhibit RPD-1, RPD's Record, Exhibit 1, p. 83, question 7 21 Exhibit RPD-1, RPD's Record, Exhibit 3, NDP for Cameroon (30 April, 2014), item 1.3 22 Ibid., item 5.8 23 Ibid., item 5.1, RIR CMR103371.E 24 Exhibit RPD-1, RPD' Record, pp. 235-236 25 Ibid., pp. 238-239 26 Ibid., pp. 242-243 27 Ibid., pp. 245-246 28 Ibid., pp. 247-248 29 Ibid., pp. 250-251 30 Ibid., pp. 253-254 31 Ibid., pp. 256-257 32 Exhibit P-2, Appellant's Record, pp. 75-76 33 Ibid. 34 Ibid., p. 79 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05245