MB5-05867

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 : MB5-05867 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 October 12, 2016 Date de la décision Panel Roxane Cyr 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Algeria, is appealing against the decision of the Refugee Protection Division (RPD), which rejected her refugee protection claim. [2] She did not present any new evidence or ask that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination, namely that XXXX XXXX XXXX XXXX is not a "Convention refugee" nor a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant alleges that she comes from an extremely conservative family, which forbade her to go out, forced her to wear the hijab outside and prevented her from seeing whom she wanted when she wanted. [5] The appellant fears her family, society and the authorities because her father has wanted to marry her to a stranger ever since this stranger allegedly followed her in the street in XXXX 2014 and entered her home to ask for her hand in marriage, which her father agreed to immediately. Learning this, the appellant allegedly expressed her refusal. She alleges that, having been subjected to psychological pressure and physical violence by her family, she eventually indicated that she would accept. [6] It was allegedly because of this acceptance that the appellant's family allowed her to travel to Canada to see her aunt, for the purpose, it was believed, of preparing for her marriage. [7] The appellant allegedly came to Canada on May 5, 2015, and was forced to return to Algeria by her aunt when the latter saw that the appellant did not want to get married. The appellant alleges that, upon her return, she was beaten by her parents but managed to escape and hide at a friend's house. [8] The appellant returned to Canada on July 16, 2015. She claimed refugee protection on September 14, 2015. [9] She also fears by reason of her sexuality; she would like to live her sexuality freely and have sexual relations outside of marriage, with partners of both sexes. She therefore fears her family, society and the authorities in relation to the desire to live her sexuality in this manner, in accordance with her bisexual orientation. RPD DECISION [10] The RPD rendered a negative decision in the appellant's case, based on the absence of credibility. - The RPD determined that the appellant's credibility was deficient regarding her personal history in Algeria before she left her country, namely her address and her education; - The RPD determined that the allegation that the appellant is bisexual was not credible; - The RPD determined that the allegation of forced marriage was not credible for two reasons. It seemed unlikely that the appellant's father would agree to give his daughter's hand in marriage to a stranger on the spot. Secondly, the explanation provided by the appellant as to why the marriage had not yet been prepared seemed implausible to the RPD; - The RPD did not grant any probative value to the copy of the passports of the appellant's mother and sister that were submitted to establish that these women and her family share religious beliefs deemed extremist, which allegedly oppressed the appellant, as she was not free to dress as she liked, stay out late or meet men; - The RPD noted that overall, the appellant had provided testimony that lacked depth and detail, which was pervasive in all her answers and undermined her credibility. APPELLANT'S MEMORANDUM [11] According to the appellant, the RPD failed to apply Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. It did not consider the appellant's fragility or distress or the fact that she was assisted by Le Chainon house in Montréal, which takes care of women in need. [12] The appellant's errors as to the apartment number where she lived in Algeria and the dates of her alleged internship in Algeria are minor errors that should not call into question the merits of the appellant's allegations in support of her refugee protection claim. [13] The RPD erred in finding that the appellant was not credible regarding the allegation of bisexuality. The appellant submits that the RPD drew the wrong conclusion, relying on the fact that she, despite the questions asked by the RPD, was unable to spontaneously answer that she also had fears in relation to her sexual orientation. The RPD should have considered the fact that it was not the only ground of fear, and that the heart of her account was instead that she was not free because of her forced marriage and her lack of sexual freedom. [14] The RPD hastily and erroneously concluded that the appellant had not demonstrated her bisexuality by viewing woman-on-woman pornographic films. [15] It is plausible for the appellant's father to have agreed to marry his daughter to a stranger because he was [translation] "quite devout." [16] The RPD made an arbitrary negative credibility finding regarding the appellant's explanations about the wedding preparations. She testified that it was because the renovations of the home where she and her husband were to live were not finished due to a lack of funds. As the RPD found that it was implausible for a bookstore owner to lack money, the appellant submits that there are many bookstores that go bankrupt. [17] The RPD erred in finding that the appellant was not credible regarding her family's extremism and in rejecting the copies of her sister's and mother's passports. The RPD was quibbling over semantics by finding that the appellant was not credible about her family members being extremists when in fact those passports had been submitted in order to demonstrate that the women in her family wear a veil and are religious conservatives. The RPD could not conclude that the appellant's credibility was [translation] "greatly" undermined simply because of this point. [18] The RPD incorrectly assessed the appellant's evidence and testimony regarding the appellant having her picture taken when she went to have her passport made. This stemmed from the fact that the appellant was not veiled in her passport photograph when she went to have the photograph taken in the company of her family. That being the case, the RPD did not believe the appellant's explanations. This finding, the appellant submits, is an extrapolation that is unsupported by the evidence. [19] The RPD erred by not taking Guideline 4 into consideration in relation to the fact that the appellant wants to live as a free woman, not forced to wear the hijab, and wants to dress as she wishes and be free to wear the clothing of her choosing. ROLE OF THE RAD [20] The RAD is an appeal tribunal for RPD decisions. [21] Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal" (see Alvarez)1 that conducts hybrid appeals, according to the recent case law. The RAD "also has the authority to investigate, an authority the Federal Court judge... does not have". [22] The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93) (paragraph 70) that the RPD, having heard the testimony, may enjoy an advantage when it comes to credibility. [70] This also recognizes that 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. [23] It is up to the RAD to determine in its analysis whether the RPD enjoyed an advantage, having heard the testimony, and in the process, to determine what degree of deference is owed to the RPD on this issue. [24] Paragraph 103 of Huruglica (2016 FCA 93) sets out the standard of review that should be adopted by the RAD: [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. [25] Consequently, the standard of review that the RAD is to apply is that of correctness, except when the finding under review concerns an issue of credibility in respect of which the RAD is of the opinion that it must show deference. [26] The RAD will consider in its analysis all the evidence, including the testimony. It will determine whether the RPD's decision contains any errors of fact, of law or of mixed fact and law, and whether they are determinative in the outcome of the case such that the decision cannot be upheld based on the standard of correctness. [27] The RAD will intervene by applying the standard of correctness in accordance with subsections 111(1) and 111(2) of the IRPA. ANALYSIS [28] The RAD considered all the evidence in its analysis. [29] It appears to the RAD that, with respect to credibility, it owes a measure of deference to the RPD since it saw and heard the appellant. [30] The appellant's refugee protection claim is based on the following elements: [31] The fear of a forced marriage; the fact that the appellant would not be free as a woman to dress how she wishes, to spend time with whomever she wants, or go out as she pleases because her parents are religious conservatives; and also the fear in relation to her allegations of bisexuality. [32] The fear of a forced marriage: the RAD agrees with the RPD's reasoning that it appears implausible that her father would accept to give his daughter's hand in marriage to a stranger based on the sole fact that he was religiously observant, and furthermore, how could he know that he was observant if he did not know him. This part of the account in the RAD's opinion is devoid of common sense, as is the story about him following her home and immediately asking for her hand in marriage. The RPD did not err. [33] The second reason why the RPD found the allegation of forced marriage not to be credible relates to the appellant's explanations about the preparations for this wedding. This wedding was apparently still not planned because the suitor had not managed to finish the construction of a second floor to house the newlyweds. It was allegedly missing the tiling, the garden and painting. This was allegedly preventing the couple from marrying and the arrangements have been put on hold for one year. [34] In the RAD's view, this explanation is inconsistent in the context alleged by the appellant. If a marriage had been agreed to by the appellant's family and the suitor in XXXX 2014, the RAD does not believe that things would have dragged on like this, that the family would have agreed to the appellant going to Canada and that the wedding preparations would still not be finalized over one year later. All this appears implausible to the RAD which, like the RPD, does not believe it. The RPD did not err on this point. Fear by reason of the appellant's alleged bisexuality [35] In the RPD's view, the appellant failed to establish her allegations in this regard. The RPD is of the opinion that it is insufficient for the appellant to indicate that she was sexually excited by watching pornography involving sexual acts between women and for having once touched and kissed a woman at a club in Montréal when she was with her boyfriend. The RAD agrees with this finding. These elements are insufficient to establish that the appellant has a fear related to her bisexuality, and what is more, they lack depth and further undermine her credibility. The RPD did not err. Fear because the appellant comes from a conservative family preventing her from living her life, dressing as she wishes and seeing whomever she pleases [36] It is a fact that the appellant's mother and sister wear a veil (see the RPD record, copy of the first page of their passports, pages 94 and 95). However, the copy of the appellant's passport shows her unveiled. The RPD questioned the appellant in this respect: How could the mother and sister who accompanied the appellant to have her passport photograph taken have allowed the appellant to have her passport issued without her being veiled? The appellant's answer that she allegedly removed the veil just before the photograph was taken and then put it back on because women are required not to be veiled contradicts the copies of both her mother's and sister's passports submitted specifically to demonstrate their conservatism. They are shown veiled. [37] The appellant's explanation is unsatisfactory, and the RAD rejects it. It demonstrates that the appellant was not veiled in Algeria, contrary to what she stated, and that her family was prepared to let her travel to Canada, which goes against her statements that she was not allowed to go out and that she had no freedom of movement. Her credibility is undermined as a result. The RPD did not err. [38] Lastly, the appellant submits that the RPD did not take into account Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution because it did not consider the fact that the appellant was taken in by Le Chainon house in Montréal, or that it takes care of women in need and therefore that the appellant is in a fragile state and in distress. [39] The Guideline specifically indicates: D. Special Problems at Determination Hearings Women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy. Some of the difficulties may arise because of cross-cultural misunderstandings. For example: 1. Women from societies where the preservation of one's virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their "shame" to themselves and not dishonour their family or community. 2. Women from certain cultures where men do not share the details of their political, military or even social activities with their spouses, daughters or mothers may find themselves in a difficult situation when questioned about the experiences of their male relatives. 3. Women refugee claimants who have suffered sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma Syndrome, and may require extremely sensitive handling. Similarly, women who have been subjected to domestic violence may exhibit a pattern of symptoms referred to as Battered Woman Syndrome and may also be reluctant to testify. In some cases it will be appropriate to consider whether claimants should be allowed to have the option of providing their testimony outside the hearing room by affidavit or by videotape, or in front of members and refugee claims officers specifically trained in dealing with violence against women. Members should be familiar with the UNHCR Executive Committee Guidelines on the Protection of Refugee Women. [40] The appellant did not submit any evidence regarding Le Chainon house to explain how her situation and allegations should have been analyzed in light of Guideline 4 on the basis that she was fragile or distressed. There is no psychological report to that effect, nor is there anything in writing from Le Chainon house. Furthermore, the appellant did not explain which elements should and should not be analyzed from this angle. In the circumstances, the RAD is of the opinion that the RPD did not err in its application of the Guideline. [41] In light of the preceding, the RAD concludes that the RPD rendered the correct decision. REMEDY [42] For these reasons, the RAD confirms the RPD's 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 section 97 of the IRPA. [43] Her appeal is dismissed. Roxane Cyr Roxane Cyr October 12, 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 : MB5-05867 10 RAD.25.02 (2014.09.11) Disponible en français