MB5-01232

RAD File No. / N° de dossier de la SAR : MB5-01232 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 August 26, 2015 Date de la décision Panel Me Diane Sokolyk Tribunal Counsel for the person who is the subject of the appeal Me Jeffrey Platt 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] Ms. XXXX XXXX XXXX XXXX, a citizen of Cameroon, appeals a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. The Tribunal has read the Appellant's Record, reviewed all documentary evidence submitted before the RPD and has listened to the recording of the hearing. The Appellant is requesting to submit new evidence under s. 110(4) of the Immigration and Refugee Protection Act (the Act) and is requesting that a hearing be held under s. 110(6) of the Act or that the file be referred back to the RPD for re-determination. DETERMINATION OF THE APPEAL Confirms RPD determination [2] Pursuant to ss. 111(1)(a) of the Act, the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention Refugee" pursuant to s. 96 of the Act nor is she a person in need of protection pursuant to s. 97 of the Act. BACKGROUND Basis of the claim [3] The Appellant alleged that she feared returning to Cameroon because her father's family had concluded an arranged marriage on her behalf in XXXX or XXXX 2014. The evidence is contradictory as to whether the Appellant is in fact already married. The Appellant is 31 years old. She completed a XXXX degree in "XXXX XXXX XXXX XXXX" in XXXX, Cameroon in XXXX, 2009. Post-graduation, she found employment in Equatorial Guinea (E.G). The evidence is also contradictory about where and when she was employed. The Appellant applied for a student visa to Canada in XXXX 2014. She arrived in Canada in XXXX 2014, in time for the Fall semester, but testified that she did not attend school. Instead she claimed refugee protection on December 24, 2014. Grounds of appeal [4] A reading of the Appellant's "Memorandum of Arguments" (pp. 16-25) of the Appellant's Record suggests one issue: The RPD incorrectly assessed the appellant's credibility. Request to submit new evidence under Section 110(4) of the Act [5] The Appellant submits one piece of documentary evidence under Section 110(4) of the Act. The "new evidence" submitted is an article on the dowry and traditional marriage in Cameroon taken from the internet site: www.yagoa.fr/sanka/26. It is dated January 22, 2015 which means that it was available to the Appellant prior to her hearing and prior to the decision taken by the RPD. As it is a document taken from an internet site, there appears to be no reason why it was not reasonably available to the Appellant before now or could reasonably have been expected to have been presented. This means it does not meet the criteria for acceptance to the RAD. Section 110(4) states: "110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." Request for a hearing under Section 110(6) of the Act and Remedy sought [6] The Appellant requests that the RAD hold a new hearing pursuant to Section 110(6) of the Act. Section 110(6) of the Act lists the criteria governing when an oral hearing should be held which is when new evidence is submitted: "(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that if accepted, would justify allowing or rejecting the refugee protection claim." [7] The RAD cannot hold a hearing in this case as no new evidence was accepted. The Tribunal will assume, for the purposes of this appeal, that the remedy the Appellant intended to request was that the matter be referred back to a different member of the RPD for a redetermination, or that the RAD grant the appeal and substitute in determining that she is a refugee or a person in need of protection. SCOPE OF THE RAD REVIEW [8] The errors alleged in the issue raised in this appeal relate to an alleged incorrect assessment of the Appellant's credibility. Errors with respect to credibility - whether with respect to testimony or the probative value of documents- are errors of fact. Counsel cites the decision of Huruglica vs. MCI 2014 FC 7991. As instructed in Huruglica, the RAD has reviewed all aspects of the RPD's decision to consider whether, in terms of the conclusions reached, the credibility of the Appellant has been properly assessed. According to Justice Phelan in Huruglica, in conducting its assessment of an RPD decision, the RAD can recognize and respect the conclusion of the RPD on issues such as credibility. (Paragraphs 54, 55) ANALYSIS OF THE MERITS OF THE APPEAL [9] The Tribunal has reviewed the RPD record and the Appellant's Record and has listened to the recorded hearing. Counsel for the Appellant has identified seven specific matters on which he alleges the RPD did not properly assess the Appellant's credibility with respect to the evidence. The RAD will review each matter in turn. a) The profile of the Appellant compared to the documentary evidence; b) The date the Appellant was informed of the marriage; c) When/if the Appellant was unemployed; d) Where the Appellant resided between XXXX 2014 and XXXX 2014; e) The Certificate of Marriage (P-7); f) The photos; g) The medical certificate. a. The profile of the Appellant compared to the documentary evidence [10] The RPD, at page 3, paragraph 17 of the decision reviews and cites the documentary evidence located at Tab 5.7 of the National Documentation Package (NDP) for Cameroon dated April 30, 2014 which states that typically, women who are forced into marriage are under 18, have little economic independence and little schooling. In paragraph 18 of the decision, the RPD compares this information to the situation of the Appellant who is 31, XXXX educated, worked in a managerial position in another country for 5 years, and owns a piece of land in Cameroon. The RPD says that even if they were to accept that not all women forced into marriage in Cameroon fit this profile, that these facts, in addition to the other evidence in this case lead the tribunal to not believe that the Appellant was forced into marriage. [11] The Appellant's counsel, at page 16 of the Appellant's Record, reviews the RPD's assessment and suggests that the RPD erred arguing "The reality of the situation is such that there are girls and women over the age of 18 who have a relatively high level of education who are exposed to this type of marriage in Cameroon." The Appellant's counsel acknowledges that the RPD correctly summarized the profile of the Appellant and further argues "All of these characteristics do not necessarily and in every circumstance preclude a forced marriage arrangement". [12] The RAD does not see any evidence in the Appellant's counsel's memorandum that is persuasive in this regard. Disagreeing with the RPD is not an argument in and of itself. The RAD finds that it is not credible that an educated woman of 31years old with a managerial position in another country, and with the skill and finances to arrange for the purchase of land and a student visa to Canada is a candidate for an arranged marriage. This, as stated by the RPD in paragraph 18 of the decision, is one element of the Appellant's credibility. b. The date the Appellant was informed of the marriage [13] The RPD, in paragraphs 19 and 20 of the decision, reviews the issue of when the Appellant allegedly first learned of her family's decision to marry her to MrXXXX XXXX XXXX During the hearing, the Appellant stated that she first learned of the intended marriage in XXXX 2014 when she returned to Cameroon. The RPD notes that she also testified that she had some doubts about the subject before arriving in Cameroon. In her Basis of Claim form (BOC), from which the RPD quotes lines 20-22, the RPD notes that the Appellant suggests that she knew of the marriage as early as August 2013, when the intended spouse, Mr. XXXX allegedly caused her to lose her job in Equatorial Guinea. When confronted with this contradiction at the hearing, the Appellant stated that it was just rumours. The RPD's reflection is that if the Appellant had heard rumours about the marriage in August 2013, she should have said so in her BOC statement. The RPD finds the Appellant not credible on this point. [14] The Appellant's Counsel, at page 17 of the Appellant's memorandum, argues that the RPD should have distinguished between the moment that the Appellant was informed of the decision she was to be married as opposed to the family's intention that she should be married. The counsel argues that the RPD confused the two notions and thus, incorrectly found that the Appellant was not credible on this point. [15] The RAD notes that during the hearing the Appellant stated that she learned of the marriage at the family meeting of XXXX XXXX and she also states that her mother told her about the marriage the night before, on XXXX XXXX, 2014. This issue also ties into the next topic - of whether the Appellant was actually ever unemployed in Equatorial Guinea in 2013 because of Mr. XXXX desire to marry her. During the hearing she stated that she knew she was losing her job in XXXX 2013 because of Mr. XXXX desire to bring her back to Cameroon to marry her. When she was confronted on this point by the RPD with her student visa application to Canada which suggests that she was never without work, the Appellant states that in fact she was just temporarily suspended for "weird behavior" and she never actually lost her job. The RAD does not find it credible that the Appellant could be unclear on a visa application about whether she lost her job. Furthermore, the RAD does not find it credible that the Appellant would not have indicated that she was aware of the rumours of a potential marriage as early as 2013in her Basis of Claim Form. (paragraph 19, RPD decision, BoC form). c. When/if the Appellant was unemployed [16] The evidence is contradictory about where and when the Appellant was employed. The documentary evidence submitted to the RPD (pp. 89-95) suggests that she had a contract to work as an assistant director XXXX XXXX XXXX from February 21, 2012 for a company called XXXX located in XXXX XXXX XXXX XXXX, and also suggests that she worked as an assistant manager for a company called XXXX (XXXX XXXX XXXX) in XXXX XXXX XXXX XXXX XXXX XXXX from XXXX 2011 until XXXX 2012. She also states that she was unemployed as of XXXX 2013. In testimony, she suggested that she was still employed after August 2103 - just "temporarily laid off for strange behavior". The names of these employers are not the same on question 8, form Imm5669, nor do they concord with the student visa application for Canada on which at page 3, under work, states that she is employed at XXXX as at XXXX XXXX, 2014. [17] As referenced above, in paragraph 21 of the RPD decision, the RPD confronted the Appellant with her two contradictory statements about her employment: The visa application for Canada, which was filed in XXXX 2014, thus close to seven months after she was allegedly fired in XXXX 2013, states that she was employed at XXXX from 2012 onwards. However, the BOC at lines 28-29 states that she was unemployed from August 2013. The RPD questioned the Appellant on this point and, while noting that she explained that it wasn't really a permanent termination of employment - it was just temporary - the RPD did not find this explanation credible. [18] Counsel for the Appellant, on page 18 of the memorandum of appeal, notes the contradiction and argues: "The lack of clarity with respect to the visa application on the matter is not at all conclusive proof of her continued employment and the very fact she is in Canada is ample proof that she had ceased working there". The Counsel argues that the fact that the Appellant did not put an ending date on her work on the visa application should not be seen as not credible because she did put an ending date of XXXX 2013 on the Imm5669 form. [19] The RAD finds that the Appellant was unable to explain the contradiction in a clear way, as described by the RPD. The fact that her explanation at the hearing was that she was not fired but temporarily suspended for "weird behavior" does not clarify the issue - it just adds to the lack of credibility by suggesting that possibly there was a reason for the company to terminate or suspend the Appellant for reasons that have nothing to do with an arranged marriage. The RAD does not find the Appellant credible on the issue of whether or when she was unemployed. This is an issue of critical importance because it has direct bearing on the issue of when she became aware of the possibility of an arranged marriage, as discussed above in paragraphs 12 - 14. d. Where the Appellant resided between July 2014 and September 2014 [20] The RAD finds that the RPD reached a sensible conclusion on all of the facts presented with respect to the residence of the Appellant between XXXX and XXXX 2014 and defers to its assessment of credibility. In paragraph 23 of the RPD decision, the RPD notes that the Appellant lived in Cameroon at her family home or at her sister's home from XXXX, 2014 until XXXX, 2014 when she left for Canada on her student visa. She was asked by the RPD when she was expected by her family to move into Mr. XXXX residence. The RPD referenced exhibit P-7, an alleged certificate of marriage (to be discussed more fully in the next section) which states that the Appellant and Mr. XXXX were married in XXXX 2014 in person, before an officiant and that a dowry was paid. The Appellant testified at the RPD that she could not move in with Mr. XXXX until there had been a ceremony. Asked when the ceremony was planned, she stated that she didn't know because she was not interested. The RPD notes that at lines 51-52 of her BOC the Appellant states that Mr. XXXX was just waiting for her to move in with him and she did not want to - which is not the same thing as waiting for a ceremony to take place. The RPD finds this implausible and given the multiple contradictions about whether she was already married, whether there was a ceremony, and the inherent contradiction with the certificate of marriage to be discussed below. [21] The Counsel for the Appellant considers these arguments of the RPD on pages 19 and 20 of the Appellant's memorandum. He states that he finds the RPD's reasoning to be speculative. Counsel cites the cases of Divsalar v. MCI2, Giron v. MCI3, and Beltran v. MCI 4, which states that findings of implausibility should be made in only very clear cases supported by the evidence. [22] The RAD notes that throughout this decision, the RPD appears to consider all of the elements of this case as intertwining and in totality finding the Appellant to be not credible on the issues which she alleges. Furthermore, while not determinative on this issue, the RAD finds it is not credible that given that the Appellant alleges she was severely beaten by her aunts and uncles on XXXX XXXX that Appellant lived quietly in the same city near her alleged husband without incident for approximately two months. This is not credible particularly given her testimony that less than a week after her arrival in Canada she was bombarded with angry telephone calls, she received death threats, her mother was physically assaulted and her daughter was at risk. It is not credible that she could live without incident in such proximity if her leaving Cameroon, her mother and her daughter provoked such rage. e. The Certificate of Marriage (P-7) [23] The RPD discusses the Certificate of Marriage at paragraphs 25 and 26 of the RPD decision. The RPD finds it not credible that the certificate attests that the prospective bride and groom were present during the marriage and payment of the dowry which allegedly took place in Cameroon in XXXX 2014. However the Appellant testified, and it is evidenced by the photocopy of her passport, that she was not physically present in Cameroon in XXXX 2014. [24] Counsel for the Appellant alleges at pages 20 and 21 of the Appellant's memorandum that there is no contradiction and that the certificate, written in French, states that the parties "se sont mariés devant nous selon nos coutumes traditionelles" does not mean that the parties were physically present and one should not assume physical presence. Counsel argues that because there was no expertise presented that established that the certificate was not genuine that the document should be considered as genuine. [25] The RAD finds that counsel's argument distorts the plain reading of the certificate. The certificate says that the parties were before the officiant. The plain meaning of this is that the parties were together before the officiant in Cameroon. There is no dispute that the Appellant was not physically in Cameroon at that time. This casts doubt on the credibility of this document. The RAD does not give any weight to this document. f. The photos [26] The RPD notes at paragraph 27 of the decision that the Appellant submitted two photos of herself with a man whom she says is Mr. XXXX. The RPD finds that given the serious doubts explained above about the Appellant's credibility, these photos do not have any probative value. [27] Counsel for the Appellant argues at page 22 of the Appellant's memorandum that "no solid, valid reasons were set out to substantiate the finding of not being able to identify the man in the photo." [28] The RAD notes that the burden of proof is on the Appellant. She submitted two photos of herself wearing different outfits with the same man. The photos are clearly posed shots and not taken spontaneously. The RAD heard the Appellant testify first that Mr. XXXX only came to the house once, on XXXX XXXX and one photo was taken at that time. She then testifies that the second photo was taken the next day when he came back to the house. If one of the photos was in fact taken the day after XXXX XXXX, the day that she says she was severely beaten and had a nosebleed one would expect the photo to show some damage to her face. It does not. Even if one does not consider this argument, there is no reason to conclude that the posed shots are of the Appellant and Mr. XXXX. The RAD finds that the Appellant is not credible about the photos. g. The medical certificate [29] The RPD finds, reviewing the medical certificate submitted at exhibit P-8, at paragraph 28 of its decision that the Appellant received medical care on XXXX XXXX 2014. However, the RPD does not give the certificate any probative value given the previous conclusions reached which cast doubt on the Appellant's credibility. [30] Counsel for the Appellant, at page 23 of the Appellant's memorandum, finds that insufficient reasons were given by the RPD for not giving probative value to the certificate. [31] The RAD finds that it is possible that the Appellant was beaten on XXXX XXXX, 2014 and that the certificate is evidence of medical care. However, this is insufficient proof to tie the alleged beating to the issue of the arranged marriage. Furthermore, it is not credible that the appellant would have been beaten by her family on XXXX XXXX and then left to reside in peace until she left for Canada two months later. The RAD does not give any weight to this certificate with respect to the arranged marriage. REMEDIES [32] For all these reasons, the Tribunal confirms the determination of the RPD that the Appellant, XXXX XXXX XXXX XXXX, is neither a "Convention refugee" pursuant to s. 96 of the Act, nor a "person in need of protection" pursuant to s. 97 of the Act. CONCLUSION [33] The appeal is dismissed. Diane Sokolyk Me Diane Sokolyk August 26, 2015 Date /dlg/kp 1 Huruglica v. Canada (Minister of Citizenship and Immigration),2014, FC 799. 2 Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] FCJ No. 875, 2002 FCT 653 (F.C.T.D.) 3 Giron v. Canada (Minister of Citizenship and Immigration) [2013] FCJ no.5 2013 FC 7. 4 Beltran v. Canada (Minister of Citizenship and Immigration), [2011] FC 1475, [2011] FCJ no. 1778. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 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 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB5-01232 2