MB4-03846

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 : MB4-03846 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision May 8, 2015 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Me Nilufar Sadeghi Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du Ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Côte d'Ivoire, is appealing against the August 29, 2014, decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim. She is asking the Refugee Appeal Division (RAD) to allow the appeal and set aside the RPD's determination. [2] The appellant presented no new evidence within the meaning of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and is not requesting a hearing. [3] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the RPD determination rendered on August 29, 2014, and substitutes its own determination, namely that the appellant is a Convention refugee under section 96 of the IRPA. [5] The appeal is allowed. FACTUAL BACKGROUND [6] In her Basis of Claim Form (BOC Form), the appellant alleges that when her father died in XXXX 2003, her uncle XXXX became her guardian. At the beginning of 2011, the appellant allegedly opposed a marriage arranged by XXXX and, consequently, was banished from the family home in XXXX 2011. The appellant stayed with a friend named XXXX XXXX. The appellant entered into a customary marriage with XXXX in XXXX 2012. A few months later, XXXX allegedly began abusing the appellant. On XXXX XXXX, 2012, the appellant supposedly filed a complaint with the police about the abuse but nothing came of it. In XXXX 2012, the appellant was again allegedly beaten and injured by XXXX, who prohibited her from going to see her friend XXXX XXXX. The appellant alleges that she had two miscarriages because of the abuse. In XXXX 2013, the appellant allegedly learned that XXXX had a wife and children in France, and he had made trips there a few times throughout the year. The appellant purportedly left XXXX twice, in XXXX and XXXX 2013. The second time, XXXX allegedly found her a week later and took her back to the house, where she was again beaten. He also allegedly threatened to kill her if she fled again. In XXXX 2013, when XXXX was travelling to France, she applied for a Canadian visa. She left for Canada in XXXX 2014. XXXX has been actively searching for her since then. DECISION UNDER REVIEW [7] On August 29, 2014, the RPD rejected the refugee protection claim, finding that it was not credible. Its conclusions are summarized below: - There were contradictions and inconsistencies in the file relating to the following: a) the circumstances surrounding the occasions when she returned home with XXXX, particularly in XXXX 2013; b) adjustments to the appellant's testimony about the number of people who attended the customary wedding; c) where XXXX was when she applied for a Canadian visa in XXXX 2013; - There was a delay of several months between the time she obtained the visa and when she left Côte d'Ivoire; - There was a XXXX-month delay between the time she arrived in Canada and when she claimed refugee protection here; - There was an overall lack of credibility, so the RPD attached no probative value to the evidence submitted by the appellant in support of her refugee protection claim, including letters, certificates and photographs. APPELLANT'S ARGUMENTS [8] In the memorandum, the appellant's counsel argues that since the RPD member did not take into consideration the appellant's particular circumstances, the RPD erred in its finding that the refugee protection claim lacked credibility. Counsel also argues that some of the conclusions are not central to the refugee protection claim. SCOPE OF THE APPEAL [9] It should be noted that the appellant is not presenting any arguments as to the standard of intervention that the RAD should apply. [10] It is my opinion that the scope of the appeal before the RAD must be examined in light of the IRPA and the case law on this subject. [11] First, the IRPA does not expressly set out the standard of intervention that the RAD should apply when reviewing RPD decisions. The introductory wording of the IRPA in section 110(1) is as follows: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. [12] Furthermore, with regard to RAD decisions, subsection 111(1) of the IRPA provides that the RAD may confirm the determination, set aside the determination and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate. [13] In addition, subsection 111(2) of the IRPA suggests that Parliament favours the finality of these decisions. In fact, it is stated that the RAD may refer the matter to the RPD only if its decision is wrong in law, in fact or in mixed law and fact and that it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [14] The Federal Court has rendered several decisions to date regarding the standard of review or intervention that the RAD should apply and its role when RPD decisions are appealed to it. [15] Thus, the appeal before the RAD is not in the nature of a judicial review. The RAD errs in applying the reasonableness standard of review, and the RAD must perform an independent assessment of all the evidence.1 [16] From the decisions rendered to date by the Federal Court regarding the standard of review or intervention applicable to the RAD, two lines of case law have emerged. [17] To begin, some decisions2 state that the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. [18] Furthermore, in Huruglica,3 the Honourable Justice Phelan states the following: "Unlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which 'in its opinion, should have been made'... [and] the RAD must conduct an independent assessment of the application in order to arrive at its own opinion."4 In order to do that, the RAD is required to conduct a hybrid appeal and must review all aspects of the RPD's decision.5 [19] As for the deference that the RAD owes to the RPD's findings, the Honourable Justice Phelan indicates that it may well be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative."6 Nevertheless, when it comes to interpreting the documentary evidence on country conditions, the Honourable Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment."7 [20] In my analysis, as to my role and functions as a member of the RAD, I have considered the provisions of the IRPA and all the Federal Court decisions concerning the RAD, and Huruglica in particular. Thus, it is my opinion that the RAD is a specialized tribunal and that I must conduct an independent assessment of all the evidence to determine whether the appellant is a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA, and therefore, whether the RPD's decision is well founded in light of the evidence presented to the RPD, the appeal records, as well as any new evidence within the meaning of subsection 110(4) of the IRPA, or any evidence gathered during a hearing under subsection 110(6) of the IRPA, if applicable. In the case at hand, it should be noted that the appellant did not present any new evidence and there was no hearing before the RAD. [21] In examining this case, I will show a certain degree of deference to the RPD's findings in terms of when the appellant's credibility as a witness is critical or determinative. Also, if there are errors on questions of law or if there are erroneous conclusions-or conclusions not supported by the evidence-on questions of fact or of mixed law and fact that are at the heart of essential elements of the refugee protection claim, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [22] The determinative issue is whether the RPD erred in its assessment of the appellant's credibility, which is a question of fact. In examining the issue, I reviewed the RPD's reasons for decision and listened to the recording of the hearing before the RPD. I also read and assessed all of the evidence in this file and came to the conclusion that the RPD committed determinative errors in its assessment of the appellant's credibility. [23] I will address the RPD's findings regarding the appellant's credibility while also explaining why I am substituting my decision for that of the RPD. Findings regarding the appellant's credibility [24] The RPD concluded that there was a contradiction between the BOC Form and the appellant's testimony with respect to the occasions when she returned to the house with XXXX after she fled, particularly in XXXX 2013. [25] Having listened to the recording and assessed all of the evidence, I agree with the appellant's counsel that there was no contradiction, for the following reasons. [26] The appellant testified about the circumstances surrounding incidents when she fled in XXXX and XXXX 2013, including the abuse from XXXX; her week-long stay in XXXX at the her friend Ms.XXXX's aunt's home; her departure, which led to altercations between the aunt and XXXX; and the continuing abuse when she returned home. [27] In my opinion, although the RPD found that there was a contradiction between the appellant's testimony regarding the circumstances surrounding her returns home-in particular whether or not she returned of her own accord-there were no indicators that the appellant was [translation] "forced" to return. While that may have been the case, I am of the opinion that those indicators did not cast doubt on whether or not she fled and then returned, given the details that were provided about the circumstances surrounding the allegations. In addition, the appellant's testimony was also substantiated by a letter from her friend,8 to which I attach probative value. [28] The RPD found that there was a lack of credibility with respect to the customary marriage to XXXX because, during her testimony, the appellant made reference to additional guests at her traditional wedding to XXXX. [29] With respect, I am of the opinion that this finding is not central to the refugee protection claim. To begin, the appellant testified about how her relationship with XXXX began, their living together and their traditional wedding. Moreover, the RPD did not question whether the marriage exists, and I find that the fact that the appellant may have added certain individuals to her description of the wedding does not call into question the existence of the alleged abuse. [30] The RPD found that the several-month delay in leaving Côte d'Ivoire undermined the appellant's credibility. [31] I agree with the RPD that there were inconsistencies in the appellant's testimony with respect to her explanations for the delay in leaving her country. However, those inconsistencies, in my opinion, are not determinative, for the following reasons. [32] To begin, the appellant testified that she had [translation] "mentally" decided, in XXXX 2013, to leave Côte d'Ivoire. She then contacted a friend in Canada for a letter of invitation, and she applied for a visa in XXXX 2013. The appellant testified that XXXX was in XXXX when she submitted that document. When confronted by the RPD about the fact that her BOC Form states that XXXX was allegedly in France, the appellant adjusted her testimony to state that he was in Côte d'Ivoire and a few days later he left for France. She also testified that she left when she knew XXXX had left for France. She testified that she had reserved tickets in XXXX 2014 so that she could leave on the XXXXth of that month. Earlier, she had testified that she had made reservations in XXXX 2013, as is supported by the documentary evidence.9 [33] Nonetheless, despite these inconsistencies and having considered all of the evidence on the record, including the IRB Chairperson's Guideline 4,10 as did the RPD, I am of the opinion that this delay is not determinative because, in my opinion, the appellant credibly demonstrated that she was a victim of abuse, for the following reasons. [34] To begin, the appellant testified about how her relationship with XXXX evolved, how they first met online and then in person in XXXX 2011. They started living together in early XXXX 2012 and then had a traditional wedding a few weeks later. She also testified about how the relationship changed and described how XXXX's attitude toward her changed. She testified about how the frequent abuse started and described her hospitalization and the two resulting miscarriages. Her testimony was consistent with the documentary evidence11 that was submitted. [35] In addition, contrary to the RPD, I attach full probative value to the documents submitted by the appellant in support of her refugee protection claim, notably the letter from her friend XXXX.12 To begin, the author provided very detailed information about how her relationship with the appellant evolved, her knowledge of the appellant's family situation and the evolution of the appellant's relationship with XXXX. This letter also provides a detailed account of the author's reactions and observations about her close relationship with the appellant, her interactions with XXXX and her visit to the appellant's home where she was being abused. [36] I also took into consideration the appellant's particular circumstances. I note that the appellant is educated, that she had the financial means to organize her departure and that she received her visa in early XXXX 2014, XXXX months before her departure. As well, I am of the opinion that the appellant's explanations that she wanted to leave the country knowing that XXXX was outside of the country-in light of the Guideline 4-are satisfactory, given that I am taking into account the appellant's state of mind and that the appellant's [translation] "caution" could have been a result of the alleged abuse she suffered. [37] As well, the RPD found that the appellant lacked credibility because there was a XXXX-month delay between the time she arrived in Canada and when she claimed refugee protection. I do not agree, given my conclusions that the appellant established the abuse she endured, the fact that the documentary evidence indicates that XXXX is allegedly still looking for her, and the fact that a certain amount of time would be required to hire a consultant and to prepare a refugee protection claim. [38] For all these reasons, and despite the deference I have showed the RPD on this matter, I am of the opinion that the RPD's conclusions regarding the appellant's lack of credibility are unfounded. For those same reasons, I am of the opinion that the appellant credibly established the key elements in support of her refugee protection claim, in particular a serious possibility of persecution by reason of her membership in a particular social group. [39] In addition, the appellant also testified about her unsuccessful efforts with the police, and that testimony was not called into question by the RPD. The authorities' alleged lack of intervention appears to be consistent with the documentary evidence13 to the effect that Ivorian law "does not specifically outlaw domestic violence, which was a serious and widespread problem.... Women who reported...domestic violence to police were often ignored." Consequently, in light of all the circumstances particular to this case, I am of the opinion that the Ivorian state would not be reasonably capable of ensuring adequate protection for the appellant if she were to return to the country. [40] As well, I took into consideration her testimony to the effect that she has no family support, having been banished from her family home by her uncle after she refused an arranged marriage, testimony that was not called into question by the RPD. What is more, I took into account that, despite the fact that the appellant took temporary refuge at a friend's home and at her friend's aunt's home, XXXX found her and the abuse continued. Taking into consideration the appellant's particular circumstances, I am of the opinion that there is no internal flight alternative available in her situation. CONCLUSION [41] Having considered all the oral and documentary evidence, in light of the reasons mentioned above, and pursuant to subsection 111(1) of the IRPA, the RAD sets aside the RPD determination rendered on August 29, 2014, and substitutes its own determination, namely that the appellant is a "Convention refugee" under section 96 of the IRPA. [42] XXXX XXXX XXXX XXXX appeal is allowed. Louis Cousineau Me Louis Cousineau May 8, 2015 Date IRB translation Original language: French 1 Notably, Eng v. M.C.I., 2014 FC 711; Alvarez v. M.C.I., 2014 FC 702; Spasoja v. M.C.I., 2014 FC 913. Huruglica v. M.C.I., 2014 FC 799. 2 Idem, the first three decisions cited in footnote 1. 3 Supra, footnote 1, Huruglica. 4 Ibidem, paragraph 47. 5 Ibidem, paragraph 54. 6 Ibidem, paragraph 37. 7 Ibidem, paragraph 38. 8 RPD record (pages 143 to 146): Exhibit D-4: XXXX XXXX's testimony. 9 RPD record (page 135): Exhibit A-3: Visa file: acknowledgement of ticket reservation, December 16, 2013. 10 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, issued by the Chairperson of the Immigration and Refugee Board of Canada, November 25, 1996. 11 RPD record (pages 156 and 157), appellant's record (pages 22 to 24): in particular, medical certificates: exhibits D-7, D-8 and D-12. 12 Supra, footnote 8. 13 RPD record (pages 67 to 77): National Documentation package on Côte d'Ivoire, March 14, 2014, Tab 2.1: Côte d'Ivoire. Country Reports on Human Rights Practices for 2013, pages 18 and 19. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-03846 11 RAD.25.02 (2014.09.11) Disponible en français