MB5-03973

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 : MB5-03973 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision May 10, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Vincent Desbiens Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX a citizen of Mali, is appealing against the decision of the Refugee Protection Division (RPD). She submits that the RPD erred in its assessment of her credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX is not a "refugee" under section 96 or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In her memorandum, the appellant alleges that her life is in danger in Mali because she left her husband and wants a divorce, but her father does not agree and would kill her in order to preserve the family's honour if she were to return to live in her country.1 [4] In addition to her Basis of Claim Form2 (BOC Form), the appellant, then referred to as the claimant, submitted several documents before the RPD.3 B. RPD decision [5] The RPD hearing took place on August 5, 2015, and the decision rejecting the refugee protection claim was rendered on August 25, 2015.4 [6] In its reasons for decision, the RPD indicates that it took Guideline 4 into consideration.5 However, it indicates that, at times, it found the claimant's testimony to be vague, imprecise and lacking depth.6 It also notes that the claimant had adjusted her testimony based on the information she was confronted with, particularly with respect to where she had lived in the past.7 It states that in light of her testimony, the claimant did not establish that she has a subjective fear of persecution nor did she demonstrate behaviour that is consistent with that of an individual facing a risk within the meaning of subsection 97(1) of the IRPA, given that she made no significant effort for more than a year after leaving her marital home.8 Finally, it concludes that with respect to the situation with her and her husband, her reasons, from the time she left him and her future plans, the claimant provided few details and adjusted her answers depending on the questions asked.9 [7] As a result of those various reasons, the RPD did not believe the claimant and, consequently, granted no probative value to the statements which could not compensate for this lack of credibility.10 That being said, the RPD assessed a medical report about an incident that took place in 2005 and concluded that there was nothing to indicate that the situation continued until the time the claimant left the marital home in XXXX 2013, not to mention the fact that she alleges that she now fears her father, not her husband.11 As for a letter written by a doctor at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX], the RPD granted it no probative value because the conclusions to the effect that the claimant is suffering from post-traumatic stress are based on her statements.12 C. Grounds of appeal and decision sought [8] In her memorandum, the appellant submits that the RPD erred in its assessment of her credibility.13 [9] Adding further detail, she submits that there was no valid reason to doubt the truth of the allegations concerning the events that she claims to have experienced in Mali.14 She also submits that the RPD appears to have ignored the fact that she was nervous and emotional during her testimony, which upset her, and those nerves and emotions could explain her difficulty in providing the correct answers regarding her home address during the hearing. In addition, there is the fact that, from a cultural standpoint, addresses are not as important for Africans as they are for individuals here.15 [10] As for her efforts to leave her country, the appellant argues that her explanations before the RPD were reasonable, particularly with respect to her financial inability, and the RPD had no reason to doubt her credibility on that point.16 With respect to the work placement she completed in Bamako while under threat, she submits that she had been living with anxiety for several years and, despite everything, was still able to fulfill her obligations.17 [11] Finally, the appellant submits that because the RPD erred in its assessment of her credibility, it consequently erred by not granting any probative value to the documents submitted as evidence (D-35, D-36 and D-37).18 [12] To conclude, the appellant is asking the RAD to set aside the RPD's determination and allow her refugee protection claim or to refer the matter to the RPD for re-determination by a new member and give any other directions that it considers appropriate.19 [13] In a written statement, the appellant's lawyer indicates that they are not submitting any evidence described in subsection 110(4) and are not requesting that a hearing be held under subsection 110(6) of the IRPA.20 IV. APPROACH TO BE TAKEN IN THIS APPEAL A. Appellant's position [14] In her memorandum, the appellant does not indicate which approach should be taken in her appeal, although she submits that the RPD's errors are serious enough to conclude that its assessment of her credibility is flawed.21 B. Brief summary of the Federal Court of Appeal decision in Huruglica [15] Following an exhaustive analysis of the legislative history and various arguments used to date, in a recent, long-awaited decision, the Federal Court of Appeal states that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law.22 It also states that an appeal before the RAD is not a true de novo proceeding.23 It also clearly specifies the approach to be taken by the RAD: [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.24 [16] As for the degree of restraint or deference owed by the RAD to the RPD's conclusions or findings as to the credibility of any testimony, Justice Gauthier makes a number of clarifications that I find very useful: [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. [71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD's findings of fact regarding the relative weight of testimonies and their credibility or lack thereof. [72] Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD. [73] Similarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings. [74] That said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.25 C. Independent assessment to correct any errors [17] Drawing on the Federal Court of Appeal decision, it is clear that I must fully exercise the role of the RAD in correcting any errors that the RPD may have made and rendering the determination that should have been made or must be made in light of the most recent evidence on the record.26 That being said, if required, I must justify whether the circumstances warrant a degree of restraint or a measure of deference to the RPD's findings as to the appellant's credibility based on her testimony. V. ANALYSIS OF THE MERITS OF THE APPEAL [18] I listened to the recording of the hearing and I carefully read the RPD's reasons for decision as well as the appellant's memorandum. In the matter at hand, the RPD's decision is based first and foremost on the claimant's testimony, including her explanations. In my opinion, before finding that the claimant's credibility was undermined for whatever reason, the RPD did not commit the error of hastily disregarding the presumption that when a claimant swears to the truthfulness of certain facts, they are presumed to be true unless there is valid reason to doubt their truthfulness.27 Here is why. [19] From the outset of the hearing, the RPD member was conscientious of the fact that the claimant was nervous and tried to reassure her.28 For my part, when I listened closely to the recording of the hearing, I did not observe that the claimant had any difficulty providing testimony because she was nervous or emotional. [20] During the hearing, the member asked the claimant why she waited so long in 2014 before trying to leave her country, once she had come back to Bamako to complete a work placement. The claimant responded that she wanted to complete her placement. When asked what was more important to her, remaining alive or learning, the claimant responded that she had to prepare her paperwork and find the money. When confronted by the member, who then asked if it took ten months to obtain a tourist visa to go to France, the claimant responded that it did not and added that there was a placement there as well. The member then noted that, despite her fear of her father and husband, the claimant had decided to complete the placement, to which she replied that she was afraid but that she had no other choice.29 [21] In her BOC Form, the claimant writes that, during that time, she was living in great fear that her father would find her and kill her. As for her financial means, in her BOC Form, the claimant writes that, during that time and with the help of her mother, she was able to rent a room not far from her placement, at XXXX XXXX XXXX Street in Bamako. She also writes that in XXXX 2014, her mother, who owned gold, sold it to be able to pay the woman who got her a false passport and helped her come to Canada.30 I am unable to accept the appellant's argument to the effect that she did not have the financial means needed to be able to try and leave her country sooner. On one hand, when she returned to Bamako in XXXX 2014, she feared that she would be found and killed by her father but, on the other hand, her mother was ready to help her and had gold that she eventually sold in XXXX 2014. Frankly, I do not see what would have prevented her from selling it sooner if it was absolutely necessary to pay the fee for a smuggler to help her leave the country sooner. [22] However, remaining longer than necessary in a country where the person who is the subject of the proceedings fears persecution is behaviour demonstrating a lack of subjective fear.31 When no convincing or reasonable explanation is provided, a delay in leaving the country can undermine the credibility of a refugee protection claimant.32 In the matter at hand, I am of the opinion that the RPD was justified in concluding that the claimant's behaviour between XXXX and XXXX 2014, when she completed her placement in Bamako, is inconsistent with that of an individual who has a well-founded fear of persecution or who is facing the risk of being killed. What is more, according to the information provided in the IMM 5669 form, she continued living at XXXX XXXX XXXX XXXX in Bamako for months afterwards, until she left for Canada in XXXX 2015.33 [23] That being said, there is reason to doubt that the appellant truly lived in a room at XXXX XXXX XXXX XXXX in Bamako, not far from her placement, between XXXX 2014 and XXXX 2015, because according to the information on her national identity card, on XXXX XXXX, 2014, she was living at XXXX XXXX XXXX XXXX in Bamako, which is the home of her husband, XXXX XXXX XXXX According to the documentary evidence, to obtain a national identity card, an individual must go to the local police station, gendarmerie or sub-prefecture. The officer in charge records the applicant's fingerprint card, height, and complete address, and the landlord's name, as the case may be. The identity card template is then filled out by the officer, who affixes the photograph and sends the specimen to the section chief, who verifies the information on the template, records it, draws up a receipt, and sends it to the chief of police for approval and signature, who returns it to the identity card section, where it is laminated and returned to the applicant.34 [24] During the hearing, the claimant clearly had difficulties when talking about her addresses in Mali. She also stated that the identity card, which was issued on XXXX XXXX, 2014, was made using the information contained in her old identity card,35 which does not correspond to the information provided in the documentary evidence. For my part, I am of the opinion that the RPD was justified in concluding that the claimant adjusted her testimony depending on the information she was confronted with, which undermined her credibility. [25] I would add that her response to the effect that the new identity was created by using the information from her previous identity card is not credible. It clearly contradicts the information provided in the documentary evidence about that subject. [26] During the RPD hearing, the claimant stated that she had not heard from her husband since XXXX 2013, when she allegedly left their family home because he was no longer interested in her.36 The basis of her refugee protection claim is the fact that since XXXX 2013, her father has allegedly wanted to kill her because she was no longer living with and still does not live with her husband, and the fact that she left her husband is an honour crime that puts her life in danger, as she stated during the hearing.37 However, in light of the information included in her national identity card, which was issued on XXXX XXXX, 2014, the appellant was still living with her husband in their family home. I am of the opinion that that is a major contradiction and, as a result, the refugee protection claim must be rejected. While the RPD did not come to that conclusion, in light of the case law, I conclude that it is not a new issue given that the appeal is based directly on the credibility of the appellant's allegations; I am therefore permitted to assess the totality of the record on this point and come to the necessary decision.38 [27] Case law establishes that RPD members must consider Guideline 439 in appropriate cases. It is incumbent on RPD members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding issues of violence against women.40 While the RPD, and the RAD for that matter, must be particularly sensitive to the difficulty that some women victims of violence may have in testifying, Guideline 4 is not intended to serve as a cure for all deficiencies in a claim for refugee protection or in documents submitted as evidence.41 [28] To discharge the burden of proving that he or she satisfies the definition of a refugee, a refugee protection claimant must demonstrate, on a balance of probabilities, that he or she has a subjective and well-founded fear of persecution. A subjective fear of persecution is solely based on the assessment of the individual's credibility while the objective fear is usually established by documentary evidence regarding the country conditions.42 [29] In the matter at hand, I am of the opinion that the appellant did not establish her subjective fear of persecution as a woman who experienced violence at the hands of her spouse in the past and who is still afraid of the potential violence she could experience at the hands of her father and uncles. VI. CONCLUSION [30] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX is not a refugee under section 96 or a person in need of protection within the meaning of section 97 of the IRPA. [31] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette May 10, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, XXXX XXXX, 2015, paragraph 1.4, page 18 of the appeal record. 2 Appellant's BOC Form, pages 12 to 25 of the RPD record. 3 The list of these documents is reproduced at pages 91, 92 and 93 of the RPD record. The documents themselves are reproduced at pages 94 to 263 of the RPD record. 4 RPD's reasons and decision, pages 3 to 11 of the RPD record. 5 Idem, paragraph 2, page 4 of the RPD record, referring to IRB Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, which came into force on November 13, 1996. The Guideline is available on the IRB website. 6 Idem, paragraph 16, page 6 of the RPD record. 7 Idem, paragraphs 17 and 18, pages 6 and 7 of the RPD record. 8 Idem, paragraphs 19 to 22, pages 7, 8 and 9 of the RPD record. 9 Idem, paragraphs 23 and 24, pages 9 and 10 of the RPD record. 10 Idem, paragraphs 25 and 26, page 10 of the RPD record. 11 Idem, paragraph 27, pages 10 and 11 of the RPD record. 12 Idem, paragraph 28, page 11 of the RPD record. 13 Appellant's memorandum, paragraph 2.1, page 19 of the appeal record. 14 Idem, paragraph 2.4, page 21 of the appeal record. 15 Idem, paragraphs 2.5 to 2.15, pages 21, 22 and 23 of the appeal record. 16 Idem, paragraphs 2.16 to 2.23, pages 23 and 24 of the appeal record. 17 Idem, paragraphs 2.24 to 2.26, pages 24 and 25 of the appeal record. 18 Idem, paragraphs 2.27 and 2.28, page 25 of the appeal record. 19 Idem, page 26 of the appeal record. 20 Written statement from XXXX XXXX, page 15 of the appeal record. 21 Appellant's memorandum, paragraph 2.27, page 25 of the appeal record. 22 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, paragraphs 36 to 103. 23 Idem, paragraph 79. 24 Idem, paragraph 103. 25 Idem, paragraphs 70 to 74. 26 Idem, paragraphs 96, 97 and 98. 27 Anthonimuthu v. Canada (Minister of Citizenship and Immigration), No. IMM-1854-04, de Montigny, January 28, 2005; 2005 FC 141, at paragraph 46. 28 Recording of the RPD hearing of August 5, 2015, 11:20 to 15:02. 29 Idem, 49:40 to 52:18. 30 Appellant's BOC Form, page 23 of the RPD record. 31 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, at paragraphs 29 and 30. 32 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374, at paragraph 28. 33 IMM 5669 form, which is reproduced at pages 35 to 39 of the RPD record; see in particular her response to question 12. 34 Research Directorate, Immigration and Refugee Board of Canada (IRB), National Documentation Package on Mali, July 31, 2015, Document 3.2: Mali: Requirements and procedures to obtain a national identity card, a birth certificate and a certificate of nationality; characteristics of each of these identity documents, including physical features (2012-February 2015), March 3, 2015, 13 pages + attachments, pages 2 and 3. 35 Recording of the RPD hearing of August 5, 2015, 53:45 to 57:55 and 01:03:15 to 01:05:38. 36 Idem, 01:07:20 to 01:07:30. 37 Idem, 01:12:35 to 01:13:30. 38 Sary v. Canada (Minister of Citizenship and Immigration), No. IMM-3451-15, Gascon, February 10, 2016; 2016 FC 178, paragraphs 15 to 21 and 27 to 30. 39 Supra, footnote 5. 40 Aziza Mahamat Nour v. Canada (Minister of Citizenship and Immigration), No. IMM-8278-11, Scott, June 25, 2012; 2012 FC 805, at paragraph 37. Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, at paragraphs 55 to 58. 41 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, at paragraphs 29 to 32. 42 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM4087-08, Beaudry, April 23, 2009; 2009 FC 398, at paragraph 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-03973 2