MB5-01530

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 : MB5-01530 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 November 24, 2015 Date de la décision Panel Me Louis Cousineau Tribunal Counsel for the person who is the subject of the appeal Me Luciano Mascaro 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 [1] The appellant, XXXX XXXX XXXX XXXX, a citizen of Cameroon, is appealing against the March 11, 2015, decision of the Refugee Protection Division (RPD) rejecting her refugee protection claim. She is asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD, allow the appeal and recognize the appellant as a "person in need of protection" or give any other directions that it considers appropriate. [2] The appellant did not submit any new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), but is requesting that a hearing be held before the RAD. [3] Despite the confusion from the appellant's memorandum,1 which indicates that the Minister is an intervening party, the Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] The appellant, who is 49 years old, alleges a fear of her husband, his family and the police authorities in her country because of her homosexuality. Everything reportedly started with the rumours about her homosexuality. The situation apparently deteriorated on XXXX XXXX, 2010, when her husband obtained evidence that she was seeing a woman; she was beaten and insulted, and then she was hospitalized for two weeks. Subsequently, she was allegedly detained for eight days because of her homosexuality and then released for lack of sufficient evidence. [7] Subsequently, her husband allegedly prohibited her from having any contact with the children, or she would be killed. She allegedly went to live with her female friend and changed cities a number of times to try to hide. The appellant alleges that she was a victim of verbal and physical assault, sometimes by men whose advances she had refused. The appellant allegedly confided in a minority rights organization to form links with her community and make friends. [8] The appellant arrived in Canada on May 8, 2014, using a visitor visa, and she claimed refugee protection in January 2015. IMPUGNED DECISION [9] In its March 11, 2015, decision, the RPD rejected the refugee protection claim, finding that the appellant was not credible for reasons that can be summarized as follows: - Although the appellant testified that she had been beaten by her husband since they were married in 1985, this alleged abuse is omitted from her Basis of Claim Form (BOC Form) and addendum, and, given that the appellant testified that she became a lesbian in 2009 because of the threats and ill-treatment by her husband, her credibility is undermined regarding the allegations of domestic violence and her sexual orientation; - There are significant contradictions and inconsistencies regarding the appellant's meetings with her female friend XXXX, which can be summarized as follows: a) The location of the first meeting; b) The invitation to that first meeting; c) The words expressed during the alleged first and second meetings, particularly regarding XXXX proposal that the appellant become her wife, as well as her acceptance; - There are omissions to the effect that her husband found and beat the appellant in XXXX 2011, in XXXX, and subsequently about the existence of visits and threats by her husband in XXXX; - Given the contradictions, omissions and inconsistencies, the appellant is generally not credible, and the RPD did not believe the allegations of domestic violence or that she is homosexual; no probative value was given to the documents2 submitted by the appellant to support her allegations. In addition, there is an inconsistency relating to her membership in an association located in XXXX, when the appellant did not stay in that city. APPELLANT'S ARGUMENTS [10] In her memorandum, in addition to the arguments on the standard of review to be applied by the RAD, which I will address further on in my reasons, the appellant's counsel alleges that the RPD made errors for the following reasons: - The RPD did not in fact consider Chairperson's Guideline 4 in its analysis of the contradictions, omissions and inconsistencies, specifically as it relates to her personality and psychological make-up; - The RPD did not consider that the appellant has a low level of education and that she had difficulty understanding the meaning of the questions, a difficulty that was amplified by the level of knowledge of the French language; - The RPD conducted a microscopic analysis of the appellant's testimony; - There were no contradictions about the alleged meetings, and the appellant explained the omissions and inconsistencies; the RPD erred by finding the appellant generally not credible. The RPD erred by not giving any probative value to the documents submitted. HEARING BEFORE THE RAD [11] In the memorandum submitted, the appellant's counsel indicates that he is not submitting any new evidence before the RAD, but he requests that a new hearing be held before the RAD. [12] First, it is appropriate to point out that under subsection 110(3) of the IRPA, the RAD must proceed without a hearing on the basis of the record of the proceedings of the RPD. Pursuant to subsection 110(6) of the IRPA, the RAD may hold a hearing when evidence presented on appeal is found to be admissible and if it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, if it is central to the decision with respect to the refugee protection claim and if it justifies allowing or rejecting the refugee protection claim. [13] In this case, since the appellant did not present any new evidence pursuant to subsections 110(3) and 110(4) of the IRPA, there is no cause to hold a hearing before the RAD.3 SCOPE OF THE APPEAL [14] In his memorandum, the appellant's lawyer refers to Huruglica4 with respect to the standard of review conferred on the RAD. [15] Like counsel, I am of the opinion that the RAD's scope must be assessed pursuant to the IRPA and the case law on this subject. [16] First, the IRPA does not expressly set out the standard of intervention that the RAD must apply when reviewing RPD decisions. The introductory wording under subsection 110(1) of the IRPA states that: 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. [17] In addition, with respect to the RAD's decisions, the IRPA provides, in subsection 111(1), that the RAD shall confirm the determination of the RPD, 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. [18] In addition, I interpret the provisions of subsection 111(2) of the IRPA as indicating that Parliament's intent is to favour the finality of decisions. It states that the RAD may refer the matter to the RPD only if it is of the opinion that the decision of the RPD is wrong in law, in fact or in mixed law and fact, and it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD. [19] To date, the Federal Court has rendered a number of decisions concerning the standard of review or intervention that the RAD should apply and its role when a decision of the RPD is appealed to it. [20] Thus, the appeal before the RAD is not in the nature of a judicial review. It is an error for the RAD to apply the standard of reasonableness, and it must perform its own assessment of all the evidence.5 [21] In addition, two lines of case law have emerged from the decisions rendered to date by the Federal Court regarding the standard of review or intervention to be applied by the RAD. [22] First, some decisions6 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. [23] Moreover, in Huruglica,7 the Honourable Justice Phelan states that "[u]nlike judicial review, the RAD, pursuant to subsection 111(1)(b), may substitute the determination which 'in its opinion, should have been made'" and that "the RAD must conduct an independent assessment of the application in order to arrive at its own opinion."8 To that end, the RAD is required to conduct a hybrid appeal and must review all aspects of the RPD's decision.9 [24] As for the deference the RAD owes to the RPD's findings, the Honourable Justice Phelan indicates that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative."10 Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states, "there is no reason for the RAD to defer to the RPD on this type of assessment."11 [25] In my analysis, with respect to my role and functions as a RAD member, I have considered the provisions of the IRPA and all the Federal Court decisions regarding the RAD, particularly Huruglica. In my view, the RAD is a specialized tribunal, and 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 and 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, where applicable. In this case, it should be noted that the appellant did not submit any new evidence and that no hearing was held. [26] In addition, in reviewing this case, I will show a measure of deference to the RPD's credibility findings. Moreover, if there are errors on questions of law or if there are erroneous findings or findings that are not supported by the evidence on questions of fact or mixed law and fact that are central to the refugee protection claim, I will intervene in accordance with the provisions of subsections 111(1) and 111(2) of the IRPA. ANALYSIS [27] The determinative issue is whether the RPD erred in assessing the appellant's credibility. To support my analysis, I reviewed the reasons for the RPD's decision and I listened to the recording of the March 10, 2015, hearing before the RPD. I also read and analyzed all the evidence in this case, as well as the appellant's memorandum and Chairperson's Guideline 4.12 [28] I will address the RPD's findings about the lack of credibility, while considering the allegations made by the appellant. RPD's findings about the lack of credibility a) Knowledge of the French language [29] First, the appellant's counsel alleges that because of her low level of education, the appellant had difficulty understanding the meaning of the questions. This difficulty was amplified by the level of her knowledge of the French language. [30] I do not accept these allegations, for the following reasons. [31] First, although once during the hearing the appellant stated that she might have expressed herself poorly in French (52:55 to 53:20), I am of the opinion that this extract from her testimony must not be analyzed in isolation but while considering the entire proceeding before the RPD. [32] It is worth noting that neither the appellant nor her counsel indicated a need for an interpreter during the hearing. In addition, based on my analysis of the recording of the hearing before the RPD, it seems clear that at the start of the hearing the question of holding the hearing in French was raised, and no comments were made by the appellant or by her counsel indicating the need for the services of an interpreter. In addition, it seems clear that during the hearing, which lasted almost two hours, the appellant understood the RPD's and her counsel's questions, and that she answered the questions without hesitation. [33] Also, the excerpt from the appellant's testimony indicated by the appellant's counsel, to the effect that she might have expressed herself poorly in French, was raised when the appellant was confronted with a contradiction concerning the location of the first alleged meeting with Christine. Note that, at that time, the appellant provided a number of explanations, which the RPD considered in its analysis. Moreover, it is worth noting that no particular difficulty of the appellant regarding her education and the use of French was raised by counsel during the hearing. [34] Consequently, I am of the opinion that the arguments of the appellant's counsel about the appellant's lack of knowledge of the French language were not established. b) Chairperson's Guideline 4 [35] Furthermore, in his memorandum, the appellant's counsel also states that the RPD failed to apply Guideline 4 in its analysis of the appellant's credibility. Thus, the RPD did not truly consider the appellant's personality or psychological make-up in its analysis. For example, regarding the full omission of the allegation of domestic abuse in her BOC Form, the appellant's counsel alleges that the appellant might not have realized the importance of mentioning past problems. [36] I do not accept this argument, for the following reasons. [37] Similar to the findings of the RPD, which considered Chairperson's Guideline 4, the fact remains that a number of omissions were raised, including the one regarding the alleged domestic abuse that is not indicated in the BOC Form, along with significant contradictions, for which the appellant's explanations were not found to be satisfactory. In addition, respectfully, I am of the opinion that counsel, on invoking a [translation] "possibility," is only invoking a hypothesis or speculation that is not supported by evidence and, furthermore, this "possibility" of not having realized the importance of mentioning past problems was not raised at the hearing. [38] Consequently, having analyzed the arguments raised about the application of Chairperson's Guideline 4, I am of the opinion that the RPD did not commit any error in this regard. c) Omissions [39] The appellant testified at the hearing before the RPD that she had become a lesbian because of the acts of domestic violence by her spouse. When asked since when she had been subjected to this abuse, the appellant testified that it was since shortly after her marriage in 1985. When confronted with the omission of any mention in her BOC Form and in her addendum of the domestic violence in the alleged circumstances, the appellant provided a number of explanations, including the circumstances of the writing of the BOC Form by her stepson, and the subsequent preparatory discussions with her counsel, in which he allegedly told the appellant to write all the problems faced, and the submission of an addendum13 to the BOC Form. [40] In my opinion, the RPD did not commit any error in its analysis of the aforementioned omission, for the following reasons. First, it is worth pointing out that neither the BOC Form nor the addendum submitted mention allegations of domestic abuse since 1985. In addition, I find that if these allegations of domestic violence were true, the appellant would have mentioned them, given their importance, their frequency-that is, three to five times a week-and how long they have been going on-that is, over 24 years. In addition, the RPD's reasons clearly establish that it considered, in its analysis, explanations provided by the appellant. Also, not only did the appellant submit an addendum to her BOC Form after she met with counsel, but she stated at the start of the hearing that the allegations in these documents were complete, true and correct. Thus, I agree with the RPD's findings that this omission undermines the appellant's credibility regarding these allegations of domestic violence and her alleged homosexual orientation, given her testimony that she had become a lesbian because of this ill treatment. d) Meetings with XXXX [41] In his memorandum, the appellant's counsel alleges that the RPD microscopically analyzed the appellant's testimony, which confused the appellant. I do not agree because, on the contrary, I find that through its questions, the RPD established that it wanted to understand the various allegations concerning this alleged relationship between the appellant and XXXX by providing her with the opportunity to fully explain the matter. In addition, based on my analysis of the recording of the hearing, the RPD's questions were not confusing because they were clear and specifically asked for explanations related to each of the meetings. [42] Furthermore, the appellant testified that she had known XXXX since XXXX 2009. The RPD raised a number of contradictions in relation to the location of the meetings, the circumstances surrounding the first meeting, and statements made about a proposal of XXXX for the appellant to become her wife-this undermined the appellant's credibility. I accept these findings of the RPD, for the following reasons. [43] First, when asked about the circumstances of the first meeting, contrary to the allegations of the appellant's counsel, she clearly testified14 that it was in XXXX, in XXXX 2009, in a house belonging to the homosexual community. XXXX allegedly asked her then to become her wife. When asked why, at that first meeting, XXXX allegedly made such a proposal to her, the appellant explained that XXXX was a lesbian. When asked again about that same subject, to obtain additional explanations, the appellant stated that she had not accepted, but when she proposed to her at their second meeting, in a pub, she accepted. Also, shortly after, she testified that during the second meeting, she had agreed to be XXXX wife, without having been asked. Moreover, later in the hearing, the appellant testified that the first meeting with XXXX was in a grocery store. Confronted with this contradiction about the location of the first meeting, the appellant repeated that it was in a grocery store. The RPD also noted an inconsistency in the provision of XXXX telephone number so that she could invite the appellant. [44] After analyzing all the evidence as well as the RPD's reasons, I also analyzed the aforementioned contradictions and inconsistency in the appellant's testimony in light of the explanations provided by the appellant, and I arrived at the same findings as the RPD, that is, that they undermine the appellant's credibility and that she has not established her homosexual relationship with XXXX or her sexual orientation. e) Omission about subsequent visits of the appellant's husband [45] The appellant testified that, while she was living with XXXX, her husband had found and beaten her, in XXXX 2011, in XXXX, and that he had also found her on two occasions in another location, that is, in XXXX. Given the omission of these [translation] "visits" in the BOC Form and the addendum, the RPD found that these allegations were not credible. In the memorandum, the appellant's counsel refers to the appellant's explanations, in particular to the existence of a book corroborating the said visits. [46] First, I find that if these alleged "visits" were real, the appellant would have mentioned them in her BOC Form or her addendum. In addition, although the appellant mentioned in her addendum that she was a victim of verbal and physical assault, she did not mention that these assaults had been committed by her spouse. Also, since I am of the opinion that the appellant did not credibly establish her relationship with XXXX or her sexual orientation, I find that the appellant failed to establish the alleged assaults mentioned above in the alleged circumstances. Moreover, it is useful to add that the said book mentioned was not submitted. f) Documents submitted before the RPD by the appellant to support her allegations [47] The appellant submitted a certificate of membership and a membership card from the association called XXXX XXXX XXXX XXXX XXXX XXXX.15 The appellant testified that she and XXXX became members of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, in XXXX 2012. The RPD gave no probative value to the documents submitted, since it did not believe the appellant's story, the documents are not originals, and it was inconsistent that the appellant would be a member of that organization in XXXX, when she had not lived there since XXXX 2010. In addition, the appellant submitted a health booklet16 and a letter17 from XXXX, to which the RPD gave no probative value, since it did not believe the appellant's story. [48] Having analyzed all the evidence and given my aforementioned reasons about the omissions and contradictions undermining the appellant's testimony, like the RPD, I give no probative value to the documents submitted, for the same reasons invoked by the RPD. In addition to these determinative conclusions, I wish to add that although the appellant testified in connection with her BOC Form that she was hospitalized for two weeks, this is not consistent with the content of the health booklet submitted that mentions instead a stay of two days. Also, although the appellant testified that she had been detained by the authorities for eight days, XXXX's letter does not mention this important allegation. In my opinion, these elements reinforce the RPD's findings. CONCLUSION [49] Having examined all the oral and documentary evidence, given the aforementioned reasons and pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that the appellant is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under subsection 97(1) of the IRPA. [50] The appeal of XXXX XXXX XXXX XXXX is dismissed. Louis Cousineau Me Louis Cousineau November 24, 2015 Date IRB translation Original language: French 1 Appellant's record: cover page. 2 RPD record: (pages 89, 98): Exhibit D-2: certificate of membership; RPD record: (pages 90 to 96): Exhibit D-3: health booklet; RPD record: (pages 110, 115): Exhibit D-5: letter from XXXX XXXX XXXX of February 12, 2015; RPD record: (page 117): Exhibit D-6: membership card. 3 Sajad v. Canada (Minister of Citizenship and Immigration), 2014 FC 1107, paragraph 17. 4 Huruglica v. Canada (Minister of Citizenship and Immigration), MCI 2014 FC 799. 5 In particular, 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. 6 Idem, the first three decisions cited in footnote 5. 7 Supra, footnote 4, Huruglica. 8 Ibidem, paragraph 47. 9 Ibidem, paragraph 54. 10 Ibidem, paragraph 37. 11 Ibidem, paragraph 38. 12 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 25, 1996. 13 RPD record: (pages 108 and 109; 113 and 114): Exhibit D-4: addendum. 14 Recording of the hearing before the RPD: CD: (as of 35:00). 15 Supra, see footnote 2 : exhibits D-2 and D-6, respectively. 16 Supra, see footnote 2 : Exhibit D-3. 17 Supra, see footnote 2 : Exhibit D-5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-01530 10 RAD.25.02 (2014.09.11) Disponible en français