MB9-11939

RAD File / Dossier de la SAR : MB9-11939 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision August 14, 2020 Date de la décision Panel Me Murielle Henri Tribunal Counsel for the person who is the subject of the appeal Abdou Gaye 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 OVERVIEW [1] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Côte D'Ivoire. He alleges that he fears for his life at the hands of his father by reason of his religion. [2] The appellant comes from a Muslim family. Owing to his friends, in 2011, he became interested in Catholicism. In 2014, while studying in Canada, he met XXXX whom he wanted to marry. His father was informed that he wanted to marry a Catholic and threatened to kill him. On July 10, 2017, the appellant claimed refugee protection. [3] On May 8, 2019, the Refugee Protection Division (RPD) rejected the refugee protection claim on the ground that the appellant was not credible. DETERMINATION [4] The appeal is allowed. I refer the matter to the RPD. ANALYSIS [5] My role is to review all the evidence and establish whether the RPD decision is correct.1 In this case, the determinative issue is credibiltiy. Conversion [6] In its decision, the RPD concluded that the appellant knew nothing about the Catholic religion and that his testimony was devoid of knowledge. He was unable to recite a prayer, a religious song or give an example of a rite that he witnessed. In his memorandum, the appellant argues that he testified to the best of his knowledge and the fact that he could not recite a prayer, as requested by the RPD, is not enough to set aside his testimony. He adds that he is in the conversion process, looking to further his knowledge of Catholic religious rites and that every Catholic believer does not necessarily know how to recite all the prayers. [7] I support the appellant's allegations. [8] Not being able to recite a prayer by heart does not necessarily mean that a person knows nothing about a religion. In listening to the recording of the hearing, I also did not hear the RPD ask the appellant to recite a religious song. Therefore, the allegation that he was incapable of reciting a religious song is not substantiated. [9] At the hearing, the RPD asked the appellant about the significance of Christmas and Easter, and the appellant was unable to answer these basic questions. In listening to the hearing, I heard the appellant answer that Christmas was the Christian celebration of Jesus's death. The RPD heard that it was the celebration of Jesus's love. Regardless, neither of these answers is correct. Regarding Easter, he answered that it was the commemoration of Jesus's death.2 This answer is also wrong. Finally, although the appellant maintained for part of the hearing that he converted to Christianity, in the facts this is not the case. Four years later, the appellant still has not been baptized and is still taking catechism classes. [10] Although these findings diminish the appellant's credibility, I am of the opinion that it is not enough to find the appellant not credible. The RPD should have asked the appellant more questions about the basics of the Catholic religion, asked questions about what he learned in his catechism classes, and also assessed the sincerity of his beliefs. In this respect, in Zhang v. Minister of Citizenship and Immigration,3 it states the following: ..., the presumption that a person swears to be of a certain religious faith cannot be rebutted simply on the basis of his or her knowledge of that religion. First, religious knowledge cannot be equated to faith. And second, the quality and quantity of religious knowledge necessary to prove faith is unverifiable. [11] I am therefore of the opinion that the RPD erred in its decision by not assessing the sincerity of the appellant's convictions in relation to his knowledge. In this regard, the Supreme Court of Canada emphasized the importance of assessing the sincerity of a person's religious convictions in its decision in Syndicat Northcrest v. Amselem: [translation] To summarize to date, our Court's previous decisions and the fundamental principles underlying freedom of religion support the idea that freedom of religion consists of the freedom to undertake practices and maintain beliefs having a nexus with religion, in which an individual demonstrates that he or she sincerely believes or sincerely undertakes to connect with the divine or as a function of his or her spiritual faith, irrespective of the fact that a particular belief or practice is required by the official religious dogma or is in conformity with the position of religious officials. [12] Consequently, I am of the opinion that the RPD erred when it concluded that the appellant knew nothing about the Catholic religion. Witness's absence [13] In its decision, the RPD questioned the truthfulness of the appellant's testimony that he had no further news from XXXX (his former girlfriend) and that he was unable to locate her. According to the RPD, if it were true that they attended university together and lived in Ottawa, it would not have been that difficult to find her. Because of this absence, the RPD drew a negative inference as to the appellant's credibility by finding that XXXX would have been the only witness necessary. In his memorandum, the appellant argues that he separated from his former girlfriend, that he has not had any news for a time and that he did not have her contact information to reach her either. [14] I am of the opinion that the RPD erred. [15] At the time of the hearing, it had already been two years since the appellant had signed his Basis of Claim Form. In two years, it is not unusual to see couples separate and have no further contact. In addition, at no time at the hearing, did the appellant mention that they went to the same university or that she lived in Ottawa. These are assumptions that the member made. [16] Therefore, on a balance of probabilities, I am of the opinion that the appellant's testimony about the fact that he is no longer in contact with XXXX to be credible. Procedural fairness and natural justice [17] In its decision, the RPD concluded that XXXX would have been the only witness necessary in the appellant's case. In the memorandum, the appellant submits that this statement ruled out any possibility of hearing from other witnesses, when he had two witnesses the day of his hearing that the RPD refused to hear. [18] I am of the opinion that the RPD erred by refusing to hear one of the witnesses: XXXX XXXX XXXX. [19] At the hearing, the member repeatedly mentioned that the witnesses the appellant had given were not useful. First of all, at the hearing the RPD states [translation] "... you tell me that you have witnesses who have absolutely bugger all to do with the issue, sir."4 Not only is the language inappropriate, but I am of the opinion that XXXX XXXX XXXX, a member of the appellant's church, present to testify about the appellant's conversion, would have been a relevant witness. Then, at the end of the hearing the RPD again stated that it did not see the relevance of hearing the witnesses. When counsel stated that he wanted to ask XXXX XXXX XXXX two questions because he was the one who had initiated him, the RPD answered that it was XXXX whom it would have wanted to hear. When counsel explained that the appellant was no longer in a relationship with her, hence, the reason for her absence, the RPD reiterated that it did not see the relevance of hearing anyone other than the key person: XXXX.5 [20] Although the RPD may limit repetitive testimony and refuse testimony that is not relevant or probative, it should not exclude witnesses who could present evidence on issues central to the refugee protection claim. In this case, in the notice to appear of witnesses, received on January 29 by the IRB, it states that XXXX XXXX XXXX, the appellant's sister, was going to testify on the way of life and traditional practices of the family and that XXXX XXXX XXXX, a friend and fellow member of the appellant's church, was going to testify on his relationship with the appellant and his conversion. In my opinion, XXXX XXXX XXXX testimony would have been relevant and in refusing to let him testify, I am of the opinion that the RPD did not show an open mind and excluded a witness who could have provided evidence on the issue central to the appellant's refugee protection claim. In this regard, the Court in Ayele states the following: ... the essence of adjudication is the ability to keep an open mind until all evidence has been heard. The reliability of evidence is to be determined in the light of all of the evidence in a particular case. This is the reason why an adjudicator must remain open to persuasion until all of the evidence and submissions are received. Evidence, that at first blush may seem implausible, may later appear plausible when set in the context of subsequent evidence. It is, at the least, suggestive of an impermissibly closed mind to state that 'there's no point calling the witness [...] when the evidence is of no use and calling the witness is futile'.6 [21] In my opinion, to refuse testimony that can corroborate the appellant's testimony and restore his credibility is a violation of procedural fairness. Other places to live [22] At the hearing, the member asked the appellant why he could not live in Guinea.7 Counsel pointed out to the member that Guinea was another country; nevertheless, the member wanted to know the reason. The appellant answered that he could not return to his uncle's in Guinea because he had the same ideology as his father. In the decision, the member concluded that all the appellant's testimony was unfounded and completely unreasonable. In the memorandum, the appellant submits that the RPD wrongly suggested that he could go live in Guinea, even though he is not a citizen of that country, nor does he have resident status there. [23] I agree with the appellant. [24] I do not understand the reason why the member asked this question and drew a negative inference from the appellant's answer when it is the RPD's role to look at the refugee protection claimant's risk in his country of citizenship and residence. [25] I am of the opinion that the RPD erred when it took the appellant's answer into account in the analysis of his credibility. [26] In this case, the determinative issue is credibility. Given that I cannot assess the testimony of a witness who was not authorized to appear before the RPD, given that the subject of this testimony is a very central element of the appellant's claim, namely his conversion to Christianity, and at the same time, given that the RPD made a certain number of findings on credibility, specifically related to the appellant's knowledge of Christianity, which are of concern, I am of the opinion that I cannot confirm the RPD's determination or substitute my own decision. DIRECTIONS FOR THE REFUGEE PROTECTION DIVISION [27] The RPD should listen to the testimony of XXXX XXXX XXXX, a witness of the appellant and further question the appellant to make a decision as to his credibility. CONCLUSION [28] I refer the matter to the RPD for re-determination by a differently constituted panel. [29] The appeal is allowed. (signed) Murielle Henri Murielle Henri August 14, 2020 Date IRB translation Original language: French. 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Recording of the hearing before the Refugee Protection Division (RPD) on April 12, 2019, at around 1:06:00. 3 Zhang v. Minister of Citizenship and Immigration,3 2012 FC 503. 4 Recording of the hearing before the RPD on April 12, 2019, at around 00:49:00 minutes. 5 Recording of the hearing before the RPD on on April 12, 2019, from about 1:28:00 to 1:29:00. 6 Ayele v. Canada (MCI), 2007 FC 126, at para. 12. 7 Recording of the hearing before the RPD on April 12, 2019, at around 1:13:57. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-11939 RAD.25.02 (January 2020) Disponible en français 7 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 (January 2020) Disponible en français