MB5-04235

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 : MB5-04235 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 June 3, 2016 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Sabine Venturelli Conseil de la personne 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 XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim. [2] The appellant is not submitting any new evidence or asking that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under subsection 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the RPD's negative determination and refers the matter to it for re-determination. BACKGROUND [4] The appellant fears mistreatment at the hands of her brother XXXX and her daughter's father, XXXX. [5] First, because a conflict was brewing between them and he was allegedly physically and verbally abusive with the appellant (both living in the same house), and second, as he was aware that the appellant was pregnant, he reportedly wanted her to get an abortion and was allegedly violent towards her. RPD DECISION [6] The RPD rendered a negative decision by finding that the appellant's overall credibility was undermined. [7] The RPD found that the appellant was not credible regarding the incident on XXXX XXXX, 2014, during which time she testified that she had been assaulted by her brother XXXX and insulted by XXXX, the father of her child. This incident, for which the appellant lodged a complaint with police on XXXX XXXX, 2014, (see the RPD record, page 59 to 61) was not mentioned in her account in her Basis of Claim Form (BOC Form). [8] In addition, the appellant contradicted herself first about being struck by XXXX only to later state that she had not, while the RPD pointed out to her that the complaint does not indicate that she had been subjected to physical violence at the hands of XXXX on XXXX XXXX, 2014 (it instead indicates that XXXX was pressuring her into having an abortion). [9] As a result, the RPD found that the appellant was not credible regarding this incident. [10] The RPD was also of the opinion that the appellant was not credible regarding the allegation that her brother XXXX had attacked her in XXXX 2014. [11] The RPD also pointed out a credibility issue in relation to the fact that her brother XXXX was attacking her: the appellant stated that her complaint and the trial against her brother XXXX had taken place in XXXX 2014, the purpose of which was for XXXX to return the rent money that he had cashed and cease his disturbing the peace, as well as the physical assaults to which the appellant claims that she was subjected. Although the letter from XXXX XXXX XXXX, dated XXXX XXXX, 2015, (see RPD record, page 55) indicates that the purpose of this trial was indeed for a family dispute and assaults, such as blows and injuries, the RPD notes that the BOC Form makes no mention of it. The BOC Form states that the judge ruled in the appellant's favour regarding the issues of rent and disturbing the peace, but makes no allusion to physical assaults. The RPD drew a negative inference in terms of credibility. [12] The RPD also drew a negative inference from the fact that the medical certificate dated XXXX XXXX, 2015, which concerns the status of the appellant's pregnancy (see RPD record, page 50), contains no mention that she had been the victim of domestic violence (the appellant allegedly obtained it, based on her testimony, in order to take an airplane and travel while she was five months pregnant). [13] The appellant did not demonstrate a prospective fear towards the father of her child because, in the RPD's opinion, he was not interested in continuing a relationship with the appellant, based on the evidence on the record. [14] These are the reasons in support of the RPD's negative decision. APPELLANT'S MEMORANDUM [15] According to this, the RPD erred in its erroneous analysis of the evidence and in basing its decision on factors that were not determinative, relevant or central. [16] The RPD erred in rejecting the events of XXXX 2014 for lack of credibility (the appellant states XXXX 2013 in her memorandum, but it is indeed XXXX 2014 according to the evidence). The RPD should have considered the explanations of the appellant, who specifically stated that she had forgotten to write them in her BOC Form, because it was not a triggering event but it was part of a series of assaults. [17] The RPD should have accepted the appellant's explanation regarding the fact that she did not mention the violent incident on XXXX XXXX, 2014, at the hands of XXXX because she had emphasized the complaint as a fundamental element and believed that she could flesh out the assault at the hearing (see complaint of September 29, 2015; RPD record, pages 59 to 61). [18] In paragraph 2.20 of the memorandum, the appellant writes that the panel criticized her for not mentioning the assault committed in XXXX 2014 by XXXX, the father of her baby, and that almost caused her to lose the baby (the RAD wishes to point out that according to the evidence on the record, the assault was allegedly perpetrated by XXXX, her brother, and not by XXXX, the father of her baby). [19] The RPD erred in criticizing the appellant because the judgment against her brother from the Court in Haiti does not contain any disposition regarding the alleged physical assaults against her. The appellant has no control over this court, and she cannot be held responsible for this omission. The RPD erred. [20] The RPD erred in criticizing the appellant for not taking the steps to obtain a detailed medical certificate of her condition, in relation to the physical violence to which she was allegedly subjected. The RPD did not take into account that this involves a victim of domestic violence, having been struck and beaten, and that this requires a heightened sensitivity to this particular issue. [21] That being the case, the RPD did not take into account Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution in the assessment of the appellant's behaviour. The RPD erred in this matter. [22] The RPD conducted a microscopic analysis of credibility without considering the appellant's issue as a female victim of violence. [23] The mere fact of considering a sequence of events as implausible does not allow the RPD to reject the related documents submitted into evidence without valid justification. [24] The appellant's testimony is plausible and does not contain contradictions. The RPD's conclusion is without merit. It accepted only elements that support its own negative findings. [25] It was wrong for the RPD to conclude that the appellant had not demonstrated that there was a prospective risk for her. Furthermore, the RPD erred by not correctly applying the internal flight alternative test (the RAD notes that the RPD decision did not issue an analysis in this respect). [26] The appellant submits that the decision must be set aside. RAD'S ROLE [27] The RAD is an appeal tribunal for RPD decisions. [28] Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal," see Alvarez,1 and Parliament conferred "a true appellate function on the RAD ... which sits on appeal of the decision of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge ... does not have." [29] The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93, paragraph 70) that the RPD may have an advantage on issues of credibility, having heard the testimony. ... there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [30] It is up to the RAD to determine in its analysis whether the RPD enjoyed an advantage, having heard the testimony, and in so doing, to see what degree of deference the RPD is to be granted with respect to this issue. [31] Paragraph 103 of Huruglica (2016 FCA 93) sets out the standard of review that the RAD should adopt: 103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [32] Therefore, the standard of review that the RAD must apply is that of correctness. [33] In its analysis, the RAD will consider all the evidence, including the testimony. It will determine whether the RPD's decision contains any errors in fact, in law or in mixed fact and law and whether they are determinative in the outcome of the case and are such that the decision cannot be upheld based on the standard of review of correctness. [34] The RAD will intervene applying the correctness standard of review in keeping with subsections 111(1) and 111(2) of the IRPA. ANALYSIS [35] The RAD considered in its analysis all the evidence, including the recordings of the appellant's testimony before the RPD. [36] The appellant fears two people: XXXX, her former boyfriend and the biological father of her daughter born in Canada; and XXXX, her younger brother. [37] Fear of XXXX: the RPD found that the appellant was not credible. The appellant stated at the hearing that she had been physically assaulted by XXXX in XXXX 2014 (there was no testimony that the appellant was assaulted by XXXX in XXXX 2013, as the appellant submits in her memorandum; the alleged attack took place in XXXX 2014, while XXXX and her brother XXXX were present) and that she had filed a complaint in this respect. However, the RPD argued that this assault was not in her BOC Form or in the complaint (see the RPD record, pages 59 to 61). It is instead written therein that XXXX was pressuring her to have an abortion. The appellant, confronted, then changed her testimony and stated that she had not been assaulted by XXXX in XXXX 2014 but that he had instead insulted her. [38] The RAD is of the opinion that the accumulation of these points, the omission in the BOC Form, the omission in the complaint of any physical assault, and the change to the appellant's testimony over the series of questions asked are sufficient to find that this event is devoid of credibility. [39] It is true that the appellant's explanations are that she forgot this attack and that she later stated that she thought that the complaint and its processing, elements in the BOC Form, were sufficient and that she was going to give further details in the hearing room. However, the RAD is of the opinion that you cannot, on the one hand, provide the explanation of oversight ([translation] "because there are so many things," as she put it) to then state that you had intentionally not raised this incident because you were going to go into further detail at the hearing. [40] Both these explanations are contradictory and do not in any way explain the omission of this event and the contradictions that arise from it. The appellant did indeed state that she had been physically assaulted and later claimed that she had not. [41] All of this is not credible, and the RPD did not err when it decided as such. [42] The medical report dated XXXX XXXX, 2015, (RPD record, page 50) indicates that the appellant had six XXXX consultations between XXXX and XXXX 2014. This report states that on XXXX XXXX, 2014, the sixth visit, the appellant had no complaint other than anxiety because of a family dispute. The RPD drew a negative inference from it in terms of credibility regarding the physical violence of which she alleges she was the victim at the hands of XXXX. [43] In light of the evidence, RAD is of the opinion that if the appellant really had been a victim of physical abuse at the hands of the father of her unborn child, this would have been on the medical report. The appellant submits that this report had simply been requested so that she could travel (by airplane because she was pregnant); however, the RAD, like the RPD, finds that this doctor took pains to write that the appellant was experiencing anxiety owing to a family dispute, but that besides that, she had no complaints (see the RPD record, page 50). Given this context, the RAD is of the opinion that if the appellant had been the victim of violence during her pregnancy, as there was a monthly check-up, this would have also been mentioned. [44] In addition, the appellant testified that she had spoken of the violence she was subjected to with the doctor. She did not think, she stated, to ask for a second medical report mentioning what she had been subjected to. That said, the RAD is of the opinion that if this doctor really were aware, she would have thought, in the wake of her steps to obtain the complaint report, to ask for a certificate from this doctor about the violence to which she had allegedly been subjected. In the RAD's opinion, as her instances of trauma did not prevent her from taking steps in Haiti to obtain other corroborative documents, this is not credible. [45] The RAD adds that according to the appellant's testimony, XXXX had another woman in his life, that this woman was going to obtain status for him in the United States, that he was in the process of doing that, and that in this context, he did not want the child. The appellant added that if she returned, she did not know if XXXX would be happy to see her or not. [46] In light of the preceding, the RAD is of the opinion that the appellant is not credible regarding the allegations that she was the victim of physical assaults by the father of her child. Nor did she demonstrate a prospective fear of him, should she return to her country. [47] Fear of XXXX, her younger brother: the RPD concluded that neither the alleged incident on XXXX XXXX, 2014, nor that in XXXX 2014, at which time the appellant stated that she was beaten and sexually assaulted by XXXX, was credible, because they were not written in the BOC Form, and the judge who ruled in the appellant's complaint against her brother in XXXX 2014, does not mention any assaults as a ground for the complaint or decision. [48] The RAD finds that the medical document (see RPD file, page 50) refers to a family dispute. This document was not rejected by the RPD. [49] Although the RPD did not believe the events in XXXX 2014 and XXXX 2014, at which time the appellant alleges that she was beaten by her brother, the fact remains that there is enough evidence on the record (medical report, testimony on the trial and the conflicts arising from disturbing the peace and rent money) to establish that there is a conflict between the appellant and her brother XXXX. In the RAD's opinion, the appellant's testimony on this point was credible regarding the existence of such a conflict. [50] However, the RAD concludes that in this particular case, the assessment of the case was not conducted in its entirety. There were no questions asked to examine in greater detail the conflict between her and her brother, the possibility of the appellant returning to live at her home while her brother is living there, and if this is not possible, to explore the various options open to her and her daughter to go and live somewhere else. In this context, in the RAD's opinion, the two-pronged test of the internal flight alternative was not thoroughly addressed through questioning before the RPD. The RAD does not have enough elements to substitute its own decision. CONCLUSION [51] For these reasons, the RAD finds that the RPD's decision is erroneous. The RAD is unable to confirm or set aside the RPD's decision without holding a new hearing. INSTRUCTIONS [52] To the extent that it is possible, the matter is referred to the same panel for re-determination so that it can address the prospective fear of the appellant in relation to her brother XXXX and the conflict between them. REMEDY [53] Under subsection 111(2) of the IRPA, the RAD refers the matter of XXXX XXXX XXXX XXXX to the same RPD panel for re-determination. [54] The appeal is allowed. Roxane Cyr Roxane Cyr June 3, 2016 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-04235 2 RAD.25.02 (2014.09.11) Disponible en français