MB7-21541

RAD File No. / No de dossier de la SAR : MB7-21541 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 / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision April 30, 2019 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person(s) who is(are) the subject of the appeal Souad Hamida Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX, the appellant, a citizen of Vietnam, is appealing against the Refugee Protection Division (RPD) decision dated September 15, 2017. She alleges that the RPD erred in its assessment of her credibility and the possibility of an internal flight alternative (IFA). [2] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the impugned determination and dismisses the appeal. BACKGROUND [3] The appellant arrived in Canada on XXXX XXXX, 2017, at the age of 17, with a student visa. During her time in school, she lived with her step-father after her mother remarried. The mother had to stay in Vietnam while waiting for a visa to come to Canada. In Vietnam, the appellant lived with her mother. The appellant alleged that when her father learned that her mother had remarried after their divorce, he allegedly demanded money from his ex-wife; otherwise, he would take away her custody of the appellant and marry her off to a Chinese man, which is customary in Vietnam. [4] The appellant filed a refugee protection claim in May 2017, at her mother's request, because she feared that her ex-husband, a violent alcoholic, would force her daughter to be sold as a bride to a Chinese man once she returned to Vietnam after her student visa expired. [5] In the decision rendered on September 15, 2017, the RPD stated that it believed that the appellant had witnessed violent episodes of domestic abuse between her parents but that the evidence did not support the allegation that the appellant's father threatened to sell her as a bride to a stranger in China. The RPD also concluded that it was possible for the appellant, her mother and her brothers to relocate safely within the country, notably in Hanoi. [6] In her memorandum, the appellant argues that her testimony was direct and spontaneous and that she should benefit from the presumption of good faith established by case law.1 In addition, she submits that the RPD erred in assessing her mother's financial situation when deciding whether her refugee protection claim was well founded. To conclude, the appellant argues that the RPD erred in concluding that there was an internal flight alternative (IFA) without explaining the evidence it had relied on to come to that conclusion. She also argues that the RPD should have considered the evidence that girls remain submissive with respect to their fathers after the age of majority. [7] The appellant is asking the Refugee Appeal Division (RAD) to allow her appeal, set aside the RPD determination and grant her refugee status or to set aside the determination and refer the matter to the RPD for re-determination. REFUGEE APPEAL DIVISION'S ROLE [8] According to case law, the RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility or the weight to be given to the oral testimony it hears, in which case the RAD may show deference to the RPD's findings.2 Should I find that deference is warranted, I will explain how the RPD enjoyed a meaningful advantage with respect to the finding in question. ANALYSIS [9] Having conducted my own analysis of the evidence on the record, I am of the opinion that the appellant's arguments are unfounded and that the RPD decision is correct. Here is why. [10] It must be noted that since the RPD hearing, the appellant turned 18, which is the age of majority in Vietnam;3 she was born on XXXX XXXX, 2000. That is also the legal age for marriage.4 The allegation that her father threatened to take away the mother's custody of the appellant to then marry her off to a Chinese man can no longer form the basis of her refugee protection claim, since the father no longer has legal authority over the appellant, and the appellant is not a minor in the eyes of the law. [11] In its decision, the RPD explained that it believed the appellant's testimony about her father's violence and alcohol problem. However, it did not find it credible that, as the appellant claimed, her father threatened to sell her as a bride to a Chinese man even after she turned the age of majority. She also alleged that daughters over the age of 18 remain submissive with respect to their fathers. I am of the opinion that the RPD decision is correct and well supported by the evidence. [12] To begin, there is no evidence that the appellant has ever been personally threatened by her father, nor has she witnessed her parents discuss her forced marriage. Second, it is significant that the appellant's father signed a consent form allowing her to study in Canada. That is not a logical act for someone who wishes to sell his daughter to a stranger. [13] Moreover, the uncontested documentary evidence on the record, namely the National Documentation package (NDP) on Vietnam, does not support the appellant's argument of forced marriage to a Chinese man. According to the NDP, it is more likely that a young woman will be sold if she is simple, poor and uneducated and lives in a rural area, often in northern Vietnam, which is a far cry from the appellant's situation. She is educated, over 18 and lives in a major city in southeastern Vietnam. In fact, there is a law in Vietnam (Tab 5.1) according to which forced marriages and those in which the spouses are not of legal age (18 for women) are outlawed (Tab 5.8).5 [14] Considering all those facts, the appellant is not credible when she states that she fears that her father will force her to marry a Chinese man if she returns to her country or when she states that she remains submissive with respect to her father after turning 18. [15] The onus is on refugee protection claimants to establish, on a balance of probabilities, that facts on which their claim is based.6 In this case, the appellant did not discharge her burden of proof. The RPD finding that the appellant did not establish a serious possibility of persecution or that she would be subjected to one of the risks set out in section 97 of the IRPA if she were to return to Vietnam is correct and I do not have to intervene. [16] As for the issue of the step-father and mother's lack of funds to finance the appellant's education or to sponsor the appellant's mother and brothers who live in Vietnam, I find that this is not a determinative aspect of the appellant's refugee protection claim. Internal flight alternative [17] Notwithstanding the negative finding regarding the basis of the refugee protection claim, the RPD still assessed the IFA for the appellant and her mother, considering that the appellant, when in Vietnam, lives with her mother in Ho Chi Minh, according to the Basis of Claim Form. It conducted the assessment while applying case law criteria.7 [18] As a result, even if the allegation of threats were founded (which is not the case in this instance), the RPD concluded that there is an IFA available in Hanoi, which is a large, cosmopolitan city. That conclusion is fully supported by the evidence and I do not have to intervene. To begin, the mother was born and raised in Hanoi. Second, she did not mention a risk to her or her children, including the appellant, if they had to live in Hanoi. [19] It has been established that the appellant's mother is a real estate agent and that her skills are transferable to another city. In addition, her career would enable her to have access to all of the housing in Hanoi. It is therefore not objectively unreasonable or unduly harsh to expect the appellant and her mother to live in Hanoi. [20] Considering the evidence, I find that the RPD did not err in its conclusion that there is an IFA in Hanoi for the appellant and her mother. DETERMINATION [21] For all these reasons, I confirm the RPD determination, 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 subsection 97(1) of the IRPA. [22] The appeal is dismissed. (signed) "Nicole Ladouceur" Nicole Ladouceur April 30, 2019 Date IRB translation Original language: French 1 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 F.C. 302 (C.A.). 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 F.C.A. 93, para. 78. 3 Supra, endnote 1, page 45, question 1(c). 4 National Documentation Package (NDP) on Vietnam, March 31, 2017, Tab 5.1, Gender, Domestic Violence and Children. 5 Refugee Protection Division (RPD)-1, RPD record, NDP on Vietnam, March 31, 2017, Tab 5.1: Social Institutions and Gender Index 2014. Organization for Economic Cooperation and Development, Tab 5.8: Law No. 52/2014/QH13 on Marriage and Family, article 5. 6 Arreaga v. Canada (Minister of Employment and Immigration) 2013 F.C. 977, para. 45. 7 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), (1994) 1 F.C.R. 589. Ranganathan v. Canada (Minister of Citizenship and Immigration), 2001 2 F.C.R. 164. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-21541 RAD.25.02 (September 18, 2018) Disponible en français 6 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.25.02 (September 18, 2018) Disponible en français