MB6-03290

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. / N° de dossier de la SAR : MB6-03290 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX Appelante Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision September 28, 2017 Date de la décision Panel Roxane Cyr Tribunal Counsel for the Appellant(s) Me Alfredo Garcia Conseil de l'appelante Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of the Dominican Republic, is appealing against a Refugee Protection Division (RPD) decision rejecting her refugee protection claim. [2] She did not present any new evidence, nor is she requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1)(a) 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" or a "person in need of protection" within the meaning of section 97 of the IRPA. ALLEGATIONS [4] The appellant is afraid of her husband, XXXX XXXX. They married in XXXX 1994 and had three children. They divorced, by mutual consent, on XXXX XXXX, 2014 (see p. 159, RPD record). [5] The appellant came to Canada on XXXX XXXX, 2014, with a Canadian visitor visa. [6] In XXXX 2014, while in Canada, the appellant applied to change the conditions of her stay (see p. 118, IMM5708, RPD record) on her visa in order to [translation] "visit her fiancé," XXXX XXXX, who lives in Montréal. [7] The appellant claimed refugee protection in Canada on February 2, 2016. [8] She stated that she fears being killed and abused by her ex-husband, XXXX XXXX, from whom she separated on XXXX XXXX, 2011. The appellant indicated that it was at that point that she left the family home with the children. The appellant stated that when they were living together, her ex-husband would drink, wanted her money, and was unstable, irresponsible and aggressive. The appellant stopped loving her husband and left him. [9] The appellant initially lived with her brother for XXXX months and then, in XXXX 2011, she went to live with her mother. Her brothers and sisters and her brother-in-law were also living there. The children moved with her to her mother's home, but then went back to live with their father where [translation] "they were more comfortable." [10] The appellant learned from her daughter, on the night of XXXX XXXX to XXXX, 2013, when she was away from where she was living (her mother's house), that her husband had gone to wait for her [translation] "at the house," meaning at her mother's house. He had a machete and wanted to kill her because he was accusing her of being with another man. [11] On XXXX XXXX, 2013, the appellant filed a complaint with the office of sexual and gender-based domestic violence. [12] The next day, she went to live with her sister's in-laws. [13] Her ex-husband threatened her at work, going there several times and calling her there. He was unable to enter the building. [14] The appellant took safety precautions, such as hiring a driver to take her to work and limiting her outings. [15] The appellant left her country on XXXX XXXX, 2014. RPD DECISION [16] The RPD rendered a negative decision in this case based on the appellant's lack of credibility. - Her testimony was vague. She had difficulty stating the date on which she had seen or spoken to her husband for the last time (was it before the incident on XXXX XXXX, 2013, or on XXXX XXXX, 2014?). She also had difficulty providing details about the divorce. - There were contradictions regarding the incident that supposedly took place on XXXX XXXX to XXXX, 2013. The appellant stated that her son was not present, whereas her Basis of Claim Form (BOC Form) indicates the opposite. She stated that no one other than herself had been threatened, whereas the police statement indicates that everyone present was threatened. [17] The RPD did not believe that this incident took place. - The RPD drew a negative inference from the fact that there were contradictions with respect to where her children were living. She stated that as of 2011, they were living with their father. However, her BOC Form indicates that they were living with her at her mother's home in XXXX 2013. - The RPD drew a negative inference from the fact that she indicated in her visa application of XXXX XXXX, 2014, (see p. 138, RPD record) that she, her husband XXXX XXXX and her mother were all living at the same address, whereas during her testimony, the appellant stated that she had stopped living with him in XXXX 2011. - The appellant's testimony contradicted her police complaint regarding where her husband was living at the time she filed the complaint. It indicates that her husband was living at XXXX, XXXX Street. In her testimony, she stated that he was living on XXXX Street. - In her BOC Form, the appellant did not state that the [translation] "women's protection bureau" she visited on XXXX XXXX, 2013, had issued a [translation] "restraining order" against her ex-husband, although she mentioned this in her testimony. The RPD was of the opinion that this omission [translation] "suggests that the claimant is attempting to present an image of a situation that does not reflect the reality of the events that took place." [18] The RPD was of the opinion that the appellant's behaviour was not that of an individual who fears for her life: - She waited nearly XXXX months before leaving the country. - She made little effort to seek protection in her country. - She waited nearly XXXX months before claiming refugee protection once she was in Canada. MEMORANDUM [19] The appellant argues that the RPD conducted a microscopic analysis of the evidence and focused on peripheral details. As a result, it erred in its analysis of her credibility. - The RPD attached too much weight to the last time the appellant and her ex-husband saw one another. The RPD's conclusion that they saw each other before the appellant left for Canada is unfounded. - With respect to the incident on XXXX XXXX, 2013, the RPD attached too much significance to the contradiction regarding whether or not the appellant's children and family were present when the incident took place by confronting the appellant with the police report (pages 162, 163, RPD record). These elements are not central to the refugee protection claim. Regardless of who was there, the refugee protection claim is based on the constant persecution the appellant was facing. - The RPD did not consider the cultural context of the appellant's personal situation when assessing her behaviour with respect to her delay in leaving the country and her failure to follow up with the police after the first complaint and to again ask for protection. - The RPD erred in rejecting the corroborating evidence without an explanation, other than to state that it did not believe the appellant's story. - The RPD erred in placing too much emphasis on the fact that the appellant did not claim refugee protection as soon as she arrived, whereas the case law indicates that the delay in claiming refugee protection is not a determinative factor, although it is a relevant aspect that the panel must consider (Pulido Ruiz v. Canada, FC 258). The RPD did not take into account the appellant's reasonable explanations. [20] The appellant is asking the RAD to set aside the RPD's determination and render a positive decision. THE RAD'S ROLE [21] The RAD is an appeal tribunal for RPD decisions. [22] Recent Federal Court decisions have established that the RAD is a "specialized (if not overspecialized) tribunal" (see Alvarez),1 and that it conducts hybrid appeals. The RAD "also has the authority to investigate, an authority the Federal Court judge ... does not have." [23] The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93) (para. 70) that the RPD, having heard the testimony, may have an advantage with regard 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. [24] A recent decision rendered by a three-member panel of the RAD2 pertaining to deference states the following: "Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context." (para. 116 b), TB6-03419) [25] Even where deference is warranted to an RPD finding, the RAD is required to undertake an independent review of the evidence upon which the finding is based. (para. 71, TB6-03419) [26] "Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the finding in question." (para. 116 c), TB6-03419) [27] "The RAD will consider the refugee determination on a standard of correctness, even where it has deferred to some or all of the findings upon which that determination is based." (para. 116 e)) [28] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review the RAD must apply: [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. [29] The RAD will conduct its own analysis. The RAD will consider all the evidence, including the testimony. It will determine whether the RPD's decision contains errors of fact, of law or of mixed fact and law, and whether they are determinative to the outcome of the case and are such that that the decision cannot be maintained. ANALYSIS [30] The RAD considered all the evidence, including the recording of the appellant's testimony before the RPD. [31] The RPD's decision is based entirely on credibility. [32] In this particular case, the RAD is of the opinion that the RPD enjoyed a meaningful advantage over the RAD with respect to the testimony, given that the RPD was able to see and hear the appellant. That being the case, its credibility findings will be reviewed according to the reasonableness standard adapted to the context of the RAD. The RPD indicates at the beginning of its analysis (see RPD decision, para. 11) that the appellant's testimony was vague and that she had difficulty answering even simple questions (questions about her divorce, for example). [33] In addition to this observation, which is in fact a preamble to the RPD's analysis, the RPD found that the appellant was not credible, based on an accumulation of elements that it found were not credible. [34] With respect to her fear, the appellant alleges in her BOC Form that she was in an unhappy marriage. The appellant did not specifically state that she was beaten while she was living with him; rather, she alleges that he was negligent, aggressive and irresponsible, and also that he abused alcohol. The appellant stated that she voluntarily moved out in XXXX 2011 with the children. The children allegedly then moved back in with their father because "they were more comfortable" there according to her testimony. [35] The evidence on the record indicates that the appellant received death threats on the night of XXXX XXXX to XXXX , 2013, as described above. Furthermore, the appellant testified that she has been afraid of being killed since that day. Therefore, this incident is central to her claim. [36] The RPD noted what it considered to be significant contradictions regarding this incident. The appellant stated that she was not living with her children while she was living with her mother (including at the time of the incidents on XXXX XXXX, 2013). However, she indicates in her BOC Form that her children were living with her at her mother's home. The statement to the prosecutor's office (see pages 162, 163) indicates that XXXX XXXX went to XXXX XXXX Street and asked [translation] "their child" where their mother was. [37] There is therefore a contradiction between the appellant's testimony, the statement to the authorities and the BOC Form. The RPD concluded that the contradiction had not been satisfactorily explained. Given that the appellant testified that her children returned to live with their father in 2011, the RAD agrees that the appellant's explanations are unsatisfactory. The contradiction remains. [38] There is also a further contradiction concerning this incident. The appellant stated that she was the only one who was threatened, whereas her BOC Form and statement indicate that the entire household was threatened. Again, when confronted, the appellant gave an explanation that the RPD considered unsatisfactory-she stated that she was not there and did not know. [39] The appellant argues that regardless of who was there, what is important and true is the fact that the appellant herself suffered harm at the hands of her ex-husband; therefore, those aspects are peripheral. [40] The RAD does not agree with this argument. The contradictions are significant, given that the appellant herself is the author of both the statement to the authorities and her BOC Form. In the circumstances, it was open to the RPD to find that this incident was not credible and to choose not to believe it, given that the appellant gave various versions of the events. [41] With respect to the last time the appellant allegedly saw her ex-husband, she argues that the RPD erred in stating that it believed that they saw one another after the separation in order to finalize their divorce. The appellant is of the opinion that this is pure speculation. [42] The RAD is of the opinion that this part of the RPD's analysis is confusing, because the divorce document (pages 154 and 155, RPD record) indicates that the former spouses appeared before a notary on XXXX XXXX, 2014, even though the appellant has been in Canada since XXXX XXXX, 2014. This document makes no sense in light of the objective facts. Therefore, the RPD's finding to the effect that the notary made an error appears to be speculative. There may be another explanation, for example, that this document is apocryphal. However, there is insufficient evidence to draw any conclusions. [43] Therefore, the RAD does not believe that the RPD's conclusion that the former spouses saw one another again is based on fact. It is indeed speculation. However, in the RAD's opinion, this has no impact on the RPD's overall decision. This point is of little significance in light of the overall evidence. [44] However, the RAD notes that when the RPD asked the appellant when she had seen her husband for the last time, she answered, [translation] "I don't know." When the RPD asked her when she had spoken to her husband for the last time, she answered, [translation] "I don't know." These answers undermine the appellant's credibility, and the RAD agrees with the RPD's observations in paragraph 11 of its decision, namely that the appellant's testimony was vague. The RAD is of the opinion that if the appellant, who is educated (she studied XXXX at XXXX XXXX, see p. 120, RPD record) and had a job with responsibilities (XXXX XXXX, see p. 120, RPD record), truly feared her ex-husband, she would have been able to give more detailed answers to these two important questions. The RAD draws a negative credibility inference. [45] With respect to the fact that she left her country in XXXX 2014 even though she stated that she had been in danger of being killed since XXXX 2013 and had a valid passport, the appellant argues that the RPD failed to consider her cultural and personal profile. [46] The RAD is of the opinion that the appellant did not explain in her memorandum how her cultural and personal profile should be taken into account. [47] For its part, the RAD considered the Chairperson's guideline on women fearing gender-related persecution. [48] The fact that the appellant is educated and had a good job, as mentioned earlier, leads to the conclusion that she is relatively intelligent and resourceful. She moved several times and took steps to leave a difficult marriage. She continued to work. The RAD is of the opinion that the RPD's analysis on this point is correct and that it did not err in finding that these points also undermined her credibility. [49] With respect to the documents rejected by the RPD, it attached no probative value to the evidence submitted as corroborating evidence. [50] Other than stating that the RPD cannot conduct a selective analysis of the evidence by rejecting corroborating evidence, the appellant's memorandum does not explain what evidence should have been considered and why. The appellant simply presents a general argument. [51] The RAD notes that it was open to the RPD to reject corroborating evidence if the account these documents pertain to was found to be not credible (see Prifti, IMM-10650-12, 2013 FC 641). [52] The RAD notes that the RPD did not conduct a microscopic analysis of the evidence focusing on peripheral aspects. [53] In the RAD's opinion, the RPD rendered the correct decision. REMEDY [54] For the foregoing 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. [55] Her appeal is dismissed. Roxane Cyr Roxane Cyr September 28, 2017 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 X (Re), 2017 CanLII 33034 (CA IRB). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (September 11, 2016) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-03290 10