MB5-03787

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 : MB5-03787 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 May 16, 2016 Date de la décision Panel Me Maria De Andrade 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 minister REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX, citizen of the Democratic Republic of the Congo, is appealing against the decision of the Refugee Protection Division (RPD), which rejected her refugee protection claim by determining that she is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is not filing any new evidence in support of her appeal and is requesting a hearing before the Refugee Appeal Division (RAD).1 [3] She is asking the RAD to allow the appeal and grant her the status of "person in need of protection" or give any other directions it considers appropriate. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD sets aside the determination of the RPD 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. [6] The RAD is unable to substitute the determination that, in its opinion, should have been made without questioning the claimant, so the matter is being returned to the RPD for re-determination by a differently constituted panel. [7] The appeal is allowed. BACKGROUND [8] In her Basis of Claim Form, the following facts are alleged. [9] The appellant arrived in Canada on XXXX XXXX, 2012, with a student visa due to expire on XXXX XXXX, 2015. She was enrolled in XXXX College's XXXX and XXXX XXXX program. Because of the student strike that took place in Quebec in the spring of 2012 and the death of her brother (he too had been a student in XXXX), she temporarily stopped her studies. [10] In the fall of 2012, she resumed her studies at XXXX College, but after encountering difficulties, she decided to change her field of study. She enrolled in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX in XXXX XXXX XXXX. She alleges that her father opposed this and informed her that he would not pay her tuition in a program other than XXXX. [11] In 2014, she enrolled in the winter session at Cégep XXXX XXXX. She alleges that once again, her father refused to pay her tuition and reminded her that he would pay only if she studied XXXX. [12] Seeing that her plans to study XXXX were not materializing, she alleges that her father contacted her in XXXX 2015 and ordered her to return to XXXX, because he had promised her in marriage to XXXX XXXX, the son of his friend XXXX. The claimant does not want to marry him. She knows him very well; he was her lover in the past and she claims that being with him was agony. What is more, she is in love with a young Congolese man living in Montréal, and she would rather marry him. Notice of intervention before the RPD [13] Pursuant to paragraph 170(e) of IRPA and section 29 of the Refugee Protection Division Rules, the representative of the Minister of Public Safety Canada filed a notice of intervention before the RPD in June 2015.2 [14] He submits that the refugee protection claim has no credible basis under subsection 107(2) of the IRPA. Impugned decision [15] On August 5, 2015, the RPD rejected the refugee protection claim. In paragraph 10 of the decision, the RPD writes as follows: [translation] "Absent evidence to the contrary, the panel accepts that the claimant's father does want to marry her to her ex-boyfriend, XXXX XXXX."3 But the RPD finds that by virtue of her behaviour, the claimant failed to establish the subjective element of her fear of persecution. [16] The RPD is also of the opinion that the claimant failed to establish that her fear of persecution is objectively well founded. In this regard, it notes that the documentary evidence indicates that in the DRC, the consent of both spouses is required for a couple to wed, and that parents trying to force their children to marry are subject to significant penalties. It also points out that the claimant was unable to specify what her father would do to her if she turned down the man proposed in marriage. Consequently, the RPD finds that the claimant did not establish a serious possibility of persecution. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's claims [17] First, the appellant submits that the RPD's conclusion that her behaviour is not that of someone fearing a forced marriage is unclear.4 According to the appellant, the RPD errs in stating that she did not establish a subjective fear of persecution because arrangements were not made for her to get married in Canada to her partner, with whom she is living in Montréal.5 [18] As for her objective fear, the appellant submits that the RPD failed to consider that despite the legal provisions, [translation] "the law is not really enforced" in the DRC6 and that in "Congolese culture, it is often difficult for girls to go against their parents' wishes or to file a complaint against them."7 The RPD [translation] "analyzed the record through a North American lens, going against Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution."8 [19] The RPD also failed to consider the information contained in Tab 5.6 of the package concerning forced marriages, specifically in XXXX, which states that "forced marriage is [translation] 'very popular in poor socio-economic environments'...[and] that victims of sexual violence...'receive inadequate care and protection from the police and the justice system'."9 Holding a hearing [20] The appellant is requesting a hearing before the RAD. [21] The RAD appeal proceeding is a paper-based process. A hearing is held only if the criteria set out in subsection 110(6) of the IRPA are met. This principle was reaffirmed by the Federal Court of Appeal in Singh.10 According to the Court of Appeal, the RAD proceeds without holding a hearing, and this principle "is subject to an exception only where the documentary evidence (a) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) is central to the decision with respect to the refugee protection claim; and (c) if accepted, would justify allowing or rejecting the refugee protection claim." [22] In the case at hand, the appellant filed no new evidence in support of her appeal. Consequently, the RAD may not hold a hearing. THE RAD'S ROLE AND FUNCTIONS [23] The appellant filed submissions regarding the RAD's role. Since then, however, the Federal Court of Appeal voiced its opinion in Huruglica11 on the issue of whether it was reasonable for the RAD, where credibility is not at issue, to review findings of fact or mixed fact and law using the standard of reasonableness test. [24] Interpreting the legislative provisions and recalling in passing Parliament's intent when the RAD was established, Justice Gauthier has this to say: [98] The RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. [25] Parliament's intent must be determined by referring first to the legislative text, specifically sections 110 and 111 of the IRPA. In this regard, the Court of Appeal indicates the following: [59] ...Paragraph 111(2)(a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be "wrong in law, in fact or in mixed fact and law". [64] The ordinary meaning of the word "wrong" is "not correct or true", "incorrect", "mistaken": The Oxford English Dictionary, 3d ed., s.v. "wrong". The French version "erronée" has the exact same ordinary meaning, that is, "fausse", "incorrecte", "inexacte", "mal fondée": Le nouveau petit Robert, 2006, s.v. "erroné". This wording definitively points to the standard of correctness. In addition, the legislator's intent to use the word "wrong" in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later. [26] After pointing out examples of situations likely to occur, the Court of Appeal states that the level of deference is "owed in each case," and concludes: [78] ...[t]he role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2)(b) of the IRPA. [27] In response to the question reformulated by the Court of Appeal, the Honourable Justice Gauthier states: [103] ...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. [28] In light of what was decided, I am proceeding with an independent analysis of the evidence to come to my own opinion regarding this refugee protection claim and to determine whether the decision rendered is correct. If an error of fact, law or mixed fact and law was committed, I will intervene by one of the means set out in sections 110 and 111 of the IRPA. MERITS OF THE APPEAL [29] The RPD writes: [translation] "Absent evidence to the contrary, the panel accepts that the claimant's father does want to marry her to her ex-boyfriend, XXXX XXXX." Nevertheless, the RPD finds that the claimant failed to establish the subjective and objective elements of her fear of persecution. [30] In Huruglica,12 the Federal Court of Appeal recognized that where findings of fact or mixed law and fact are founded on an assessment of oral testimony, the RPD may, in some cases, enjoy an advantage over the RAD. The degree of deference [translation] "must be assessed on a case-by-case basis," and the RAD must determine whether, in light of the evidence, it can render a definitive decision or whether it must return the matter to the RPD. [31] In the case at hand, I listened to the recording of the hearing, reviewed all the evidence and considered the arguments presented on appeal to determine whether the RPD rendered the correct decision. Consideration was also given to the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. [32] Having done all this, I am of the opinion that this refugee protection claim should be re-determined by a differently constituted panel. Here is why. Subjective element of the fear [33] The RPD finds that the behaviour of the refugee protection claimant, who has taken no steps to marry the man with whom she is in a relationship in Montréal, shows the absence of the subjective element of the alleged fear. [34] The appellant argues that the RPD erred and that this finding shows a [translation] "lack of sensitivity." She submits that a marriage in Canada would in no way change the fact that her father still wants her to marry XXXX XXXX, adding that her marriage in Canada would not resolve her situation because if she forces her lover to marry her to get [translation] "papers," she runs the risk of seeing her sponsorship application denied. [35] Taking into account the appellant's testimony at the hearing, I find that the arguments presented as to a potential sponsorship by her boyfriend are of no advantage to the appellant. Indeed, according to the statements at the hearing, the young Congolese man who is her lover also has student status in Canada. Under section 13 of the IRPA, one must be either a Canadian citizen or permanent resident to be able to sponsor a foreign national for purposes of "family reunification." [36] However, and with all due respect, it is my opinion that the RPD erred in concluding that the claimant's behaviour denotes the absence of the subjective element of her fear. In the case at hand, it should be pointed out that the RPD writes that it is [translation] "taking it for granted that the claimant's father does want to marry her to her ex-boyfriend, XXXX XXXX." This means that it is looking on this as a recognized fact. [37] At the hearing, the claimant stated that she did not want to marry XXXX XXXX and that she discussed her problem with her lover. Although the latter is agreeing to marrying her, he responded that he would prefer to finish his education before becoming engaged. It is wrong to conclude that the claimant is not afraid of the marriage proposed by her father, simply by virtue of the fact that she did not seize the opportunity to get married in Canada and thus escape her father's plan. In my opinion, the appellant's fate cannot be dependent on her boyfriend's decision. Objective element [38] According to the RPD, the claimant did not establish that the alleged fear is well founded. The RPD bases its decision on, among other things, the information contained in tabs 5.4 and 5.6 of the national documentation package, which indicates that in the DRC, [translation] "the consent of both spouses is required for a couple to wed, and that parents trying to force their children to marry are subject to significant penalties." The RPD also takes account of the claimant's inability to specify what awaits her in the event that she refuses to marry XXXX XXXX. [39] The appellant argues that the RPD failed to consider that at Tab 5.4 it is also mentioned that "in Congolese culture, it is often difficult for girls to go against the wishes of their parents or to file a complaint against them."13 According to her, the RPD [translation] "analyzed the record through a North American lens, going against Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution."14 She also maintains that Tab 5.6 of the package indicates that "forced marriage is [translation] 'very popular in poor socio-economic environments'."15 Lastly she submits that [translation] "forced marriage is tantamount to a form of persecution in that it constitutes grave harm that undermines the appellant's basic rights."16 [40] I listened to the recording of the hearing and I cannot conclude that the RPD was insensitive to the claimant's situation or that the refugee protection claim was analyzed through a North American lens without taking into account the Congolese context, specifically the fact that "in Congolese culture, it is often difficult for girls to go against the wishes of their parents or to file a complaint against them."17 In this regard I am not at all convinced that the submissions presented are not applicable to many other cultures, including North American culture. [41] It has been established that women who fear forced marriages constitute a particular social group within the definition meaning and that forced marriage is serious harm.18 That being said, documentary evidence mentioning the existence of forced marriages in a country is not in itself sufficient to conclude that a refugee protection claim is well founded. The claimant must also be able to establish the alleged facts on a balance of the evidence and establish that she is affected by a forced marriage. [42] In my opinion, it is important to analyze the alleged fear while taking into account the documentary evidence on country conditions, but above all while taking into account the claimant's particular context, in this case her family, which-according to the evidence on the record-is not in a poor socio-economic situation. In addition, the appellant testified that her father is a XXXX XXXX XXXX XXXX in the Congo. The evidence also reveals that several of her brothers and sisters are or were students in Canada and that her sisters were not forced to marry. [43] On the subject of alleged fear, the UNHCR Handbook states: Due to the importance that the definition attaches to the subjective element, an assessment of credibility is indispensable where the case is not sufficiently clear from the facts on record. It will be necessary to take into account the personal and family background of the applicant, his membership of a particular racial, religious, national, social or political group, his own interpretation of his situation, and his personal experiences - in other words, everything that may serve to indicate that the predominant motive for his application is fear. [44] In this case, although the RAD must show a degree of deference to the RPD's findings of fact, I find the identified shortcomings significant enough for the decision to be set aside and for this refugee protection claim to be referred to another RPD panel for re-determination, especially since it is my opinion that her claim raises a number of credibility problems, which were not addressed by the RPD. Since I cannot hold a hearing, I find that I am unable to substitute the determination with the one that should have been made. The matter must be returned to the RPD to assess the credibility of the alleged facts, but also to assess the internal flight alternative. CONCLUSION [45] For these reasons, I am setting aside the RPD's determination 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. Since I am unable to substitute a determination without a hearing being held to question the appellant's credibility and the internal flight alternative, I am referring the matter to the RPD so that the refugee protection claim can be assessed by a differently constituted panel. [46] The appeal is allowed. Maria De Andrade Me Maria De Andrade May 16, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, page 10. 2 Refugee Protection Division (RPD) record, pages 127 to 146. 3 RPD record, page 6. 4 Appellant's memorandum, page 13. 5 Appellant's memorandum, page 14. 6 Appellant's memorandum, page 15. 7 Appellant's memorandum, page 15. 8 Appellant's memorandum, page 15. 9 Appellant's memorandum, page 15. 10 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 11 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 12 Idem. 13 Supra, footnote 7. 14 Supra, footnote 8. 15 Supra, footnote 9. 16 Appellant's memorandum, page 17. 17 Supra, footnote 9. 18 Ngeseuako Henguva v. Canada (Minister of Citizenship and Immigration), 2013 FC 483. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-03787 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-03787 10 RAD.25.02 (7 février 2014) Available in English