MB4-04517

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 : MB4-04517 MB4-04518 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX (XXXX XXXX XXXX) XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision April 10, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subjects of the appeal Me Éric Taillefer Conseil des personnes en cause Designated representative XXXX XXXX Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX (XXXX XXXX XXXX), the principal appellant, and XXXX XXXX KEITA, her minor daughter, citizens of Senegal, are appealing against the decision of the Refugee Protection Division (RPD), submitting that it erred, namely, in its analysis of the documentary evidence and in its assessment of the principal appellant's credibility. [2] The principal appellant was previously designated to act as the representative of her minor daughter, and under the Refugee Appeal Division Rules, this representative is deemed to have been designated by the Division.1 II. DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX (XXXX XXXX XXXX) and XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [4] In the Basis of Claim Form (BOC Form), which the principal appellant signed on May 20, 2014, she states that if she returned to live in Senegal she would be subjected to mistreatment, given that she objects to the female genital mutilation of her minor daughter, which her husband demands. She also states that her husband threatened to ruin her life if she opposed their daughter's female genital mutilation, which, furthermore, would challenge one of the sacred values of their community-the XXXX XXXX.2 [5] In her BOC Form, the principal appellant states that on XXXX XXXX, 2014, her husband told her to go to Senegal with the children and that their daughter was getting older and had to undergo female genital mutilation, which she opposed. She also states that her husband then threatened to cut off funds and ruin her life if she insisted on her decision.3 [6] The appellants submitted a few documents before the RPD in addition to their BOC Forms.4 B. RPD decision [7] The hearing before the RPD was held on July 23, 2014, and the decision to reject the claims for refugee protection was rendered on October 2, 2014.5 [8] In its reasons for decision, the RPD states that it found a number of reasons to doubt the claimants' account.6 [9] It first points out that the principal claimant has not lived in Senegal for about 20 years but that she has returned there many times over the years; the last time was in 2010, at which time she stayed with her husband.7 [10] It then found that the principal claimant's credibility was undermined by a contradiction between her testimony and what she wrote in her BOC Form. In her testimony before the RPD, the principal claimant stated that female genital mutilation was important to her husband, but not for her, and that she could not openly criticize her husband. In her BOC Form, she writes that she voiced her refusal to him about having her daughter subjected to female genital mutilation. The RPD found that the explanations that she did not want to talk about it openly or create problems were not reasonable.8 [11] It then found that the principal claimant's behaviour was inconsistent with her fear of seeing her husband cut off her funds: [translation] [12] The claimant also hesitated in answering the panel when it asked whether her husband was aware of the application for permanent residence made in Canada. In the end, she stated that, yes, her husband was aware of it and that was why he now wanted her to return, because the application for residence was taking time, and that he allegedly threatened to cut off her financial support. However, he had apparently not done it yet. The claimant repeated that she tried to avoid the subject with her husband. But the panel considers the claimant's behaviour to be inconsistent with the fear that she alleges when she again stated sidestepping the issue. It is unreasonable to think that she would not broach this subject with her husband, while declaring at the same time that he threatened to cut off her funds. The claimant's credibility is again undermined.9 [12] The RPD then emphasized that the principal claimant waited five years before claiming refugee protection in Canada and that she never filed any such claim in the United States.10 [13] The RPD then found that the principal claimant was hesitant and adjusted her testimony when she was asked to address the issue of the age of female genital mutilation of young girls in Senegal.11 [14] Further on in its reasons for decision, the RPD indicates that the principal claimant is in regular contact with her husband, who still lives in Senegal but who is also included in the application for permanent residence in Canada. It also refers to an application for a temporary resident visa and to a letter dated XXXX XXXX, 2012, which indicates that the appellants have lived in Canada for three years and that XXXX is a student here, went to XXXX for her holidays and was to return to Montréal to study.12 Hence, its conclusion: [translation] [23] The panel is of the opinion that the alleged risk of female genital mutilation and the alleged insistence of the husband and her other family or community members did not materialize and that her alleged fear was not demonstrated, as the claimant allowed her daughter to go alone to Senegal, where she could have been subjected to female genital mutilation by her father, family members or anyone else who had an interest in doing so. Furthermore, a few pages later, we note the signatures of the husband and wife, that is, of XXXX XXXX and his wife, who submitted a travel authorization for this minor child to go to Senegal.13 [15] Finally, the RPD did not grant any probative value to an email, indicating that it had been written to support a claim that was not credible.14 C. Grounds of appeal and decision sought [16] In their memorandum, the appellants submit that the RPD erred in its analysis of the documentary evidence and in its assessment of the principal appellant's credibility.15 [17] Regarding the documentary evidence, they submit that the RPD committed a major error by concluding that the minor daughter was too old to undergo female genital mutilation.16 They also submit that the RPD committed another error, this time regarding the email dated XXXX XXXX from XXXX XXXX, by concluding that he was not identified and that its contents were not very plausible.17 [18] Regarding the principal claimant's credibility, they submit that, at the time of the hearing before the RPD, she was not hesitant and that she clearly explained her precarious situation, relying on the fact that she had spent a long time outside her country in order to put distance between her daughter and her in-laws, who wanted to subject her to female genital mutilation.18 [19] They also submit that, dependant on her husband, the principal appellant tried to find a way to be able to stay in Canada without her husband suspecting her wish of never returning to live in Senegal with her daughter. In this respect, they submit that at the time of her testimony before the RPD, the principal claimant stated that she loved her husband, that he loved his children and that she was convinced that, if he were to come to Canada, she could convince him not to give in to pressure from his family: [translation] "Essentially, the appellant instead fears her in-laws and the retaliation that she might face if she did not subject her daughter to female genital mutilation."19 [20] They also criticize the RPD for not taking into account any of the principal claimant's explanations regarding her failure to claim refugee protection at the earliest opportunity.20 [21] They finally submit that they were not asked to comment or provide submissions regarding the visa application which was disclosed after the hearing.21 [22] The appellants are asking the RAD to allow the appeal, to set aside the RPD's determination, to grant them refugee status and to give any other directions it considers appropriate.22 [23] In her written statement, the principal appellant indicates that she is not submitting any new evidence within the meaning of subsection 110(4) of the IRPA. Nor is she requesting that a hearing be held before the RAD, but she indicates that, if there is one, she would like it to be held in French.23 IV. APPROACH TO BE TAKEN IN THIS APPEAL [24] In their memorandum, referring to the Federal Court decision in Spasoja, the appellants state that the RAD must render the decision that, in its opinion, should have been made.24 [25] In Djossou, Justice Martineau demonstrates that the approach used at that time by the RAD to determine its role compared with that of the RPD was not an acceptable outcome in law.25 He is unequivocal: an appeal before the RAD is not a judicial review, as the RAD has much broader powers on appeal than those of a court of law sitting in judicial review,26 and he urges the RAD to consider the three options before it-true appeal, appeal de novo or hybrid appeal-with an open mind.27 In the conclusion of this decision, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference until such time as the Federal Court of Appeal or even the Supreme Court of Canada has decided the issue definitively. He states that, in the interim, the onus is on the RAD to review the IRPA and to adopt a new test based on an analysis that takes all the relevant factors into account. He adds that, in his opinion, the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review, and the composite and variable standard of review) discussed in Alyafi are not the only options to consider-the absence of deference in the case of any error of law, fact or law and fact being also a possible option.28 [26] In Aloulou, Justice LeBlanc states that respect for legislative intent weighs against treating appeals before the RAD as a form of judicial review and against developing a policy of deference, the effect of which would be to turn appeals into pseudo-judicial reviews. He goes on to state that the RAD has a different purpose: it serves to rectify any error of law in the RPD's decision or any palpable or overriding error in the determination of the facts or in the application of the law to the facts, assuming that it was correctly identified.29 [27] In Akuffo, Justice Gagné states that, when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions diverge within the Federal Court on the level of deference that is owed.30 In Sajad and Bui, Justice Shore states that the RAD owes a certain level of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.31 [28] Drawing as much as possible on the decisions rendered to date by the Federal Court, I am of the opinion that, in this case, while conducting my own assessment of the evidence, I must show a measure of deference to the RPD's findings concerning the principal appellant's credibility. V. ANALYSIS OF THE MERITS OF THE APPEAL [29] After an independent assessment of the appeal record, I conclude that the appellants did not establish that they have a well-founded fear of persecution or that it is more likely than not that they would be subjected to a personalized risk to their lives or to a risk of cruel and unusual treatment if they had to return to live in their country. Here is why. [30] First, the appellants' argument that they were not asked to present their submissions following the disclosure of the visa application after the hearing before the RPD cannot be accepted. In the RPD record, there is a letter indicating that some additional documents were disclosed to them. The letter reads as follows:32 [translation] You may reply to these documents on XXXX XXXX, 2014, or before that date, by presenting other documents or written submissions on the issues raised in the documents disclosed. You may present a request for the hearing in this matter to be resumed by providing reasons for this request, if required. [31] Among the documents that were then disclosed to the appellants was an invitation letter dated XXXX XXXX, 2012, signed by the principal appellant, indicating that her minor daughter had gone to XXXX for her vacation and that she was to return to Montréal to study here. With regard to finances, the letter states that the father was to assume all the costs related to her education and stay in Canada.33 There is also a consent form signed by the principal appellant's husband allowing his minor daughter to stay in Quebec with her mother. This consent form is valid until the expiry date of the Quebec acceptance certificate (CAQ) for the child's studies or until her age of majority, if she reaches the age of 18 before the expiry of the CAQ.34 Finally, there is a travel authorization for Senegal for the principal appellant's minor daughter from XXXX XXXX, 2012, to XXXX XXXX, 2012, and this authorization was signed by both her and her husband.35 [32] In my opinion, the RPD was completely warranted to refer to these documents, to note that the claimants and their counsel did not react at all to the disclosure of these documents, and to conclude that these documents added to its doubts as to the subjective fear raised by the principal claimant on behalf of her daughter regarding her possible female genital mutilation in Senegal.36 [33] It is appropriate to point out that, to discharge the burden of establishing that she meets the definition of refugee, a person who claims refugee protection must establish, on a balance of probabilities, that she has a well-founded subjective fear of persecution. Furthermore, the absence of subjective fear must result in the rejection of the claim for refugee protection because it is a fundamental component of the concept of persecution.37 [34] In light of the information included in these documents, I find that it is impossible to reconcile the appellants' behaviour with the existence of a subjective fear of the possible forced female genital mutilation of one of them. [35] Furthermore, in the appeal memorandum, the appellants state that the principal appellant loves her husband, that he loves his children and that, ultimately, it is her in-laws whom she fears. This statement is on all accounts contradictory with the statements made by the principal appellant in her BOC Form, in which she specifically writes that, if she were to return to live in Senegal, she would be the victim of mistreatment because she opposes the female genital mutilation of her minor daughter, which her husband demands, or else he will ruin her life.38 [36] Finally, I find that the appellants' arguments regarding the errors that the RPD allegedly committed are not satisfactory. [37] Regarding the explanations as to the failure to claim refugee protection at the earliest opportunity, they are absolutely inconsistent with the appellants' actual behaviour. Indeed, how can it be argued that the principal appellant had no fear of returning to Senegal because she was waiting for permanent resident status in Canada, even though she actually allowed her minor daughter to travel to Senegal? [38] Furthermore, regarding the email dated XXXX XXXX from XXXX XXXX, I find that the RPD was justified in not granting it any weight when it found that the principal appellant was not credible. In fact, according to the case law, it is allowed not to grant any probative value to evidence that merely repeats a version of the facts considered not to be very credible.39 [39] Regarding the documentary evidence that the RPD allegedly improperly analyzed, it is important to point out that the documentary evidence on the conditions in a country does not alone establish the existence of a well-founded fear of persecution or a risk to the life of a person claiming refugee protection who comes from that country. This person must also demonstrate a connection between that documentary evidence and his or her personal situation.40 In this case, given the credibility problems clearly identify by the RPD, the appellants obviously did not succeed in establishing this connection. [40] Finally, whether or not the principal appellant was hesitant in some parts of her testimony is only one factor among many that finally led the RPD to conclude that the claimants had not met their burden of establishing that they have a well-founded fear of persecution or that it is more likely than not they would be subjected to a risk to their lives if they had to return to live in Senegal. In reading the RPD's reasons for the decision in their entirety, I find that there is no reason for me to amend it. VI. CONCLUSION [41] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX (XXXX XXXX XXXX) and XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" under section 97 of the IRPA. [42] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 10, 2015 Date IRB translation Original language: French 1 RAD Rules, SOR/2012-257, subrule 23(1). 2 Basis of Claim Form (BOC Form), pages 19 and 26 of the RPD record. 3 Idem, page 19 of the RPD record. 4 The documents are reproduced at pages 143 to 151 of the RPD record. They are also reproduced at pages 67 to 76 of the appeal record. 5 RPD reasons and decision, pages 3 to 10 of the RPD record. 6 The use of the French word demandeure in a claim for refugee protection is not universally accepted. Based on the evolutionary character of the French language and using the increasingly prevalent example of the word professeure to represent the female gender of professeur, I am of the opinion that the word demandeure in a claim for refugee protection presented to an administrative tribunal is more apt than the use of the word demanderesse, which is generally used for an adversarial trial procedure. 7 RPD reasons and decision, paragraph 10, page 5 of the RPD record. 8 Idem, paragraph 11, page 6 of the RPD record. 9 Idem, paragraph 12, page 6 of the RPD record. 10 Idem, paragraphs 13 to 16, pages 6 and 7 of the RPD record. 11 Idem, paragraph 17, page 7 of the RPD record. 12 Idem, paragraphs 18 to 22, pages 7 and 8 of the RPD record. 13 Idem, paragraph 23, page 9 of the RPD record. 14 Idem, paragraphs 25 and 26, page 9 of the RPD record. 15 Appellants' memorandum, November 13, 2014, paragraphs 16 to 46, pages 92 to 98 of the appeal record. 16 Idem, paragraphs 16 to 20, page 92 of the appeal record. 17 Idem, paragraphs 21 to 27, pages 92, 93 and 94 of the appeal record. 18 Idem, paragraphs 28 to 31, page 95 of the appeal record. 19 Idem, paragraphs 32, 33 and 34, pages 95 and 96 of the appeal record. 20 Idem, paragraphs 35 to 40, pages 96 and 97 of the appeal record. 21 Idem, paragraphs 41 to 44, pages 97 and 98 of the appeal record. 22 Idem, page 100 of the appeal record. 23 Appellant's statement, November 19, 2014, paragraphs 5 and 6, page 11 of the appeal record. 24 Appellants' memorandum, paragraph 48, pages 98 and 99 of the appeal record. 25 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 37. 26 Idem, at paragraph 41. 27 Idem, at paragraph 55. 28 Idem, at paragraph 91. 29 Aloulou v. Canada (Minister of Citizenship and Immigration), No. IMM-7949-13, LeBlanc, December 19, 2014; 2014 FC 1236, at paragraphs 54 and 57. 30 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 31 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Van Son Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. 32 The letter is produced at page 98 of the RPD record. The documents themselves are reproduced at pages 99 to 140 of the RPD record. 33 The letter is reproduced at pages 116 and 117 of the RPD record. 34 The consent form is reproduced at page 122 of the RPD record. 35 The travel authorization is reproduced at page 123 of the RPD record. 36 RPD reasons and decision, paragraph 24, page 8 of the RPD record. 37 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM-4087-08, Beaudry, April 23, 2009; 2009 FC 398, at paragraphs 13, 16 and 18. 38 Basis of Claim Form (BOC Form), pages 19 of the RPD record. 39 Nijjer v. Canada (Minister of Citizenship and Immigration), No. IMM-340-09, de Montigny, December 9, 2009; 2009 FC 1259, at paragraph 27: "Despite the RPD's duty to consider all of the evidence, the finding that a claimant has no credibility may extend to all of the evidence he or she submits. This is what the Court of Appeal recognized in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, [1990] 3 F.C. 238 and Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] F.C.J. No. 302. In dismissing evidence that merely repeated a version of the facts considered to be not very credible and improbable, the RPD did not err or breach the general rule that all evidence must be considered before ruling on the credibility of an applicant's account. In this case, the RPD was entitled to consider that the sarpanch's documentary evidence was not sufficient to make an account that otherwise appeared in many respects to be implausible credible." 40 Morales Alba v. Canada (Citizenship and Immigration), (No. IMM-3943-07), Shore, October 29, 2007; 2007 FC 1116, at paragraphs 31 and 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-04517 MB4-04518 11