MB8-24302

RAD File No. / No de dossier de la SAR : MB8-24302 MB8-24303 / MB8-24304 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 26, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Stéphanie Valois Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Ms. XXXX, you are a citizen of Chad and in your appeal you are acting as the designated representative of your minor children, who are British citizens. You have stated that you fear persecution in Chad because of your commitment to XXXX XXXX XXXX in that country.1 [2] The Refugee Protection Division (RPD) rejected your claim for refugee protection on the grounds that you were not credible. The RPD further determined that your minor children had not established a fear of persecution or a risk to their lives in their country of citizenship.2 [3] On appeal, you argued that the RPD erred in analyzing your credibility with regard to your claim for refugee protection.3 [4] An initial decision of the Refugee Appeal Division (RAD) dismissed your appeal,4 but that decision was subsequently set aside by the Federal Court on the grounds that the principles of procedural fairness had been breached.5 [5] Further to this decision of the Federal Court, you requested that documents that had not been submitted with your appeal record be admitted into evidence.6 [6] After conducting my own analysis of the record, I find that the evidence you presented on appeal is not admissible (I) and that there is no cause to hold an oral hearing (II). I have, however, concluded that the RPD did err in analyzing your credibility (III). [7] In light of this conclusion, your appeal is allowed and your case is referred back to the RPD for redetermination of your refugee protection claim. I. EVIDENCE PRESENTED IN YOUR APPEAL [8] Subrule 29(2) of the Refugee Appeal Division Rules7 (RAD Rules) provides that, if a person who is the subject of an appeal wants to use a document or provide written submissions that were not included in the appeal record, the person must make an application to the RAD in accordance with rule 37. [9] Under subrule 29(1) of the RAD Rules, such documents may not be used unless authorized by the RAD. [10] Subrule 29(3) of the RAD Rules provides that the person who is the subject of the appeal must include in an application to use a document that was not previously provided an explanation of how the document meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to the person, unless the document is being presented in response to evidence presented by the Minister. A. Application to authorize the use of certain evidence [11] In her application, your counsel requested that the RAD admit into evidence your affidavit signed on XXXX XXXX XXXX 2020, a decision rendered orally by the RPD on September 9, 2019, allowing the refugee protection claim of another one of your daughters-in fact, your oldest daughter-and documents pertaining to female genital mutilation or excision in Chad. She submitted that this evidence meets the criteria set out in rule 29 of the RAD Rules and subsection 110(4) of the IRPA.8 Your affidavit dated XXXX XXXX, 2020 [12] In your affidavit, you stated that your XXXX for XXXX XXXX as part of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX has won the hearts of many women in Chad who are taking a stand against female genital mutilation and the marriage of underage girls and that you became a role model for those who had seen you fighting for this cause. [13] You also stated that the leadership of XXXX informed you that they are always being singled out by the Superior Council of Islamic Affairs, which is also still searching for you to convict you, as you refused to respond to their summons of XXXX XXXX, 2017. [14] You also stated that if you returned to Chad you would continue to fight against the practice of excision and for women's rights. [15] You maintained that you no longer get along with your ex-husband and that you fear his family, who would want him to take the children, as is the custom in Chad, if you were to return to Chad. [16] You also indicated that on September 19, 2019, your eldest daughter was granted refugee status, and you attached the RPD decision concerning her. [17] You stated that if you returned to Chad the life of your eldest daughter, XXXX XXXX XXXX, would be in danger, your minor daughter, XXXX, would undergo the same mutilation as her older sister, and your two minor children would be at risk of being mistreated by their father's family.9 The RPD determination regarding your eldest daughter's refugee protection claim [18] The RPD decision concerning your eldest daughter was rendered orally on September 19, 2019. At that time you were acting as her designated representative and you testified during her hearing before the RPD.10 [19] Before the RPD, your eldest daughter alleged that her parents separated when she was two years old, that she was raised by and lived with her maternal grandmother, both her parents having remarried subsequently, and that her father held an important position at the Embassy of Chad in Sudan at the time of the hearing. [20] In its decision, the RPD noted that her problems began in XXXX 2018 when the XXXX of XXXX XXXX XXXX XXXX approached her family seeking to marry her, which was refused. The RPD added that her family was subsequently threatened, that one of her paternal uncles accepted a bribe, that your eldest daughter went into hiding and that her father was able to obtain a visa for Canada, where you were already residing. [21] Based on your eldest daughter's credibility, the letters written by her father and uncle that corroborated her allegations, and the documentary evidence regarding violence against women, including forced marriages, the RPD allowed her refugee protection claim and granted her refugee status. Articles on excision in Chad [22] You also submitted documents that are accessible on the Internet pertaining to the situation of girls in Chad who are handed over for excision.11 B. There is no basis for authorizing the use of this evidence [23] Subrule 29(4) of the RAD Rules provides that, in deciding whether to allow an application, the RAD must consider any relevant factors, including the document's relevance and probative value, any new evidence the document brings to the appeal and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or submissions with the record.12 [24] For my part, I consider that there is no reason to authorize the use of the evidence to which your application refers, and that it is not admissible in your appeal. The reasons are as follows. Concerning your affidavit [25] Regarding your affidavit, which pertains to the fact that you have become a XXXX XXXX for women in Chad who are standing up against the excision of girls and the marriage of underage girls, you have established neither how nor when you were informed of the fact that you had allegedly become a XXXX XXXX in your country for women fighting against the excision of girls and the marriage of underage girls. Due to a lack of precision on your part, I cannot conclude that this is new evidence or that you could not reasonably have included this information in your memorandum of appeal. Furthermore, I am of the opinion that the probative value of this part of your affidavit is weak, given that it is not supported by any evidence from the persons or organizations that have allegedly stated that you are a role model in your country for women fighting against the excision of girls and the marriage of underage girls. [26] Regarding the part of your affidavit that pertains to your XXXX to the XXXX XXXX XXXX XXXX in Chad, in my view, you have not established at what point the leaders of XXXX informed you that they were still being singled out by the Superior Council of Islamic Affairs and that you were still being pursued by that same organization allegedly seeking to condemn you for refusing to respond to their summons of XXXX XXXX XXXX 2017. Due to a lack of precision on your part, I cannot conclude that this is new evidence or that you could not reasonably have included this information in your memorandum of appeal. I am further of the opinion that the probative value of this part of your affidavit is weak, given that it is not supported by any evidence that came directly from the XXXX leadership. [27] As for the part of your affidavit pertaining to the fact that you would continue to fight against excision and for women's rights if you had to return to your country, I consider that its purpose is to support your allegations and your testimony given before the RPD but that it does not bring any new evidence to your appeal. [28] Concerning the part of your affidavit that pertains to your relationship with your ex-husband since 2019, it is not clear to me which husband you are referring to. Is it the one you were married to from XXXX XXXX, 2000, to XXXX XXXX, 2002, as you indicated on an immigration form,13 the one who is the father of your eldest daughter, XXXX XXXX XXXX? Or is it rather your second husband, who is the father of your minor children, whom you came to Canada with? [29] In any event, your stated fears due to the fact that you no longer get along with your ex-husband relate to what could happen to your children. [30] Your eldest daughter, who has reached adulthood, now has refugee status in Canada, and I do not see why she would return to live in Chad, where her life would automatically be in danger, as you write in your affidavit. [31] As for your two minor children with whom you came to Canada, the RPD determined that they were citizens of Great Britain,14 relying on the documentary evidence15 and on your testimony in this regard during the hearing before it, when you stated that they had no fear regarding their country of citizenship, namely Great Britain.16 In your memorandum of appeal, you did not submit any detailed observations regarding an error that the RPD allegedly made at that time.17 Consequently, in your appeal, I am of the opinion that there is no need to assess their fear regarding Chad. The RPD decision allowing your eldest daughter's refugee protection claim [32] In your affidavit and the application submitted by your counsel, I have found no arguments or observations that would establish the relevance of this decision to your appeal. [33] That being said, I understand that you were XXXX in the XXXX XXXX XXXX XXXX in your country, specifically in the fight against excision and forced marriage. [34] However, on your Basis of Claim Form (BOC Form), you never referred to any fears you may have had concerning your eldest daughter's situation.18 At the time of the hearing before the RPD, which took place on September 19, 2018, you did not make any changes to your BOC Form, and you did not inform the RPD that you were fearful about your eldest daughter's situation.19 In your memorandum of appeal filed on XXXX XXXX XXXX 2018, you did not mention any issues regarding your eldest daughter's situation either.20 However, the problems that your eldest daughter and her maternal family encountered began in XXXX 2018, according to the RPD decision concerning her. [35] I am therefore of the opinion that you have not established the relevance of that decision to your own appeal and that there is no reason to authorize the use of that decision in your appeal. Articles on excision in Chad [36] The articles in question pertain to the problems encountered by girls living in Chad. As your minor daughter is a British citizen, these articles are not relevant to her situation. II. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [37] The RAD Rules provide that the person who is the subject of the appeal must submit a memorandum that includes full and detailed submissions regarding why the RAD should hold an oral hearing.21 [38] In her application, your counsel stated that you were ready to proceed with a hearing if the RAD considered that the documents concerned raised credibility issues that needed to be resolved in this manner, although in your view these documents clearly confirm your fear of persecution.22 [39] It is up to the RAD to determine whether or not the tests under subsection 110(6) of the IRPA have been met.23 One of the tests under this subsection is that evidence presented on appeal must be determined to be admissible. I determined that the evidence you submitted in your appeal was not admissible. Therefore, it is not possible to hold a hearing.24 III. ANALYSIS OF THE APPEAL [40] It is not the role of the RAD to proceed with a de novo review of refugee protection claims but rather to determine whether the RPD erred as alleged.25 [41] I conducted my own analysis of the record, primarily by reading the transcript of the RPD hearing26 and reading the documentary evidence. I concluded that the correctness standard of review must be applied.27 A. The errors you allege the Refugee Protection Division made [42] The RAD Rules provide that the person who is the subject of the appeal must specify: i) the errors that are the grounds of the appeal, and ii) where the errors are located in the RPD's decision or in the transcript or any recording of the hearing.28 [43] In your memorandum, you submitted that the RPD erred in - finding that you were not credible on the basis of secondary facts that were insufficient to reject your testimony given under oath; - focusing solely on the summonses filed in evidence instead of questioning you about your XXXX XXXX for XXXX XXXX and the problems you encountered with the Chadian police; - characterizing the summonses as documents of convenience when this was not appropriate; - analyzing the fact that you did not apply for asylum in the United States from the standpoint of your credibility rather than that of your subjective fear.29 B. The RPD erred in analyzing your credibility [44] When it analyzed the RAD decision in your case, the Federal Court made some comments regarding the RAD decision in your case. It noted at that time that the RPD's decision concerning you was rendered on a very narrow basis. [45] With respect to the summonses issued by the Superior Council of Islamic Affairs, the RPD determined that they were documents of convenience based on the following facts: - there was no date of issuance on them; - they bore the same number; - they did not indicate why you were being summoned; - there was no reference to [translation] "Mrs." on the form. [46] Concerning your failure to claim asylum in the United States, the RPD found that this further undermined your credibility.30 [47] A decision-maker can reach a conclusion regarding the weight to be given to a document once it has assessed its credibility or its probative value or both.31 Documentary evidence is not assessed in isolation from the claim for refugee protection as a whole. Where the refugee protection claimant's personal testimony is not credible, it is reasonable for the RPD to have credibility concerns with the supporting documentary evidence, and the RPD may accord it minimal weight.32 [48] That being said, if the RPD is not convinced of the authenticity of a document, it should state this and assign no importance to it.33 In order to arrive at a similar conclusion, the RPD is not required to request an expert opinion, and even if it is not itself an expert on the subject matter, basing its conclusion on the evidence before it is sufficient.34 When the RPD assesses the authenticity of a document, it can rely on details. Whether these details are sufficient to conclude that the document is not authentic depends on the facts of the matter in question.35 [49] Based on my own analysis of the record, the RPD did not clearly decide that the summonses issued by the Superior Council of Islamic Affairs were not authentic, which it should have decided. It confined itself to stating that they were documents of convenience. [50] Moreover, after questioning you on the absence of the title [translation] "Mrs." on these two summonses, the RPD found that your response, namely that the error was theirs, was unsatisfactory and that it undermined your credibility. [51] According to the case law, the RPD must examine each piece of evidence separately, and even if authenticity concerns may justify a careful review of the other evidence, the evidence as a whole should not be treated as an undifferentiated mass.36 [52] According to my analysis of the record, the RPD erred in finding that your credibility was undermined by your response regarding the anomalies in these summonses without at the same time drawing a conclusion based on the whole of your testimony and on your fear of persecution in Chad if you had to return to live in this country. Similarly, its conclusion that the fact that you had not applied for asylum in the United States of America further confirmed your lack of credibility constitutes an error in my view, although the fact that you did not apply for asylum in the countries where you stayed may undermine your subjective fear. [53] The Federal Court recently noted that, prior to analyzing issues such as objective fear, state protection and internal flight alternative, a claimant must establish a nexus between the risk of persecution and one of the grounds provided for in the Refugee Convention.37 I am of the opinion that you have done so as regards your political opinion on XXXX XXXX in your country, particularly regarding the excision of girls and forced marriages. [54] The Federal Court also pointed out that once a nexus between a Convention ground and a risk of persecution has been established, a refugee protection claimant must demonstrate that there is a serious possibility that they will be persecuted on the ground in question. That being said, in order to establish a risk of persecution, they do not have to demonstrate that they had been persecuted in the past, because it is possible to establish persecution within the meaning of section 96 of the IRPA by examining the treatment of persons who find themselves in a similar situation. Accordingly, to make a proper determination regarding a refugee protection claim under section 96, both the claimant's particular situation and the overall documentary evidence should be taken into account in determining whether the latter is subjected to a risk of persecution.38 C. The RPD must reassess your claim for refugee protection [55] On appeal, it is sometimes possible to remedy an injustice that may have arisen earlier in the administrative process.39 Having read the transcript of your hearing before the RPD, I am of the opinion that your testimony is too brief to allow me to take into account your personal situation and the overall documentary evidence concerning those who XXXX XXXX XXXX XXXX in your country, so that I can properly render a decision on your refugee protection claim. In other words, I am unable to confirm or set aside the RPD's determination and substitute the determination that should have been rendered for it without holding a new hearing. [56] Consequently, as provided for under paragraph 111(1)(c) and subsection 111(2) of the IRPA, the matter is referred to the RPD for redetermination, my directions being that the RPD examine you in the context of a new hearing about your personal situation with regard to your fear of being persecuted in Chad, as well as the overall documentary evidence concerning the people who are involved in XXXX for and XXXX XXXX XXXX, particularly as regards excision and forced marriages. CONCLUSION [57] For these reasons, I hereby set aside the RPD's determination regarding your claim for refugee protection and I refer the matter to the RPD for redetermination so that it can be reviewed by another member. [58] Your appeal is allowed with regard to your claim for refugee protection relating to your fear of persecution in Chad. [59] As for your minor children, who are British citizens, no argument was presented in your appeal regarding them. I therefore confirm the RPD's determination rejecting their claims for refugee protection. (signed) Alain Bissonnette Me Alain Bissonnette February 26, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Forms (BOC Forms) are reproduced at pp. 9-29 and the documents you provided as evidence at pp. 32-46 of the scanned version of the Refugee Protection Division (RPD) record. 2 RPD Reasons and Decision, September 28, 2018, at pp. 5-9 of the scanned version of the RPD record. 3 Your memorandum, XXXX XX 2018, at pp. 1-8 of your appeal record. 4 Refugee Appeal Division (RAD) Reasons and Decision, November 20, 2019, 6 pages. 5 Bouchra v. Canada (Minister of Citizenship and Immigration), No. IMM-7563-19, Roy, November 17, 2020; 2020 FC 1063. 6 Application, undated, at p. 1 of the scanned version of the document Nouvelles preuves [New evidence]. 7 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257. 8 Application, supra, endnote 6. 9 Your affidavit, at pp. 2, 3 and 4 of the scanned version of the document Nouvelles preuves. 10 RPD decision in MB8-24236, September 9, 2019, at pp. 5-8 of the scanned version of the document Nouvelles preuves. 11 Blaise Dariustone, "Tchad : les jeunes filles toujours livrées à l'excision" [Chad: girls still handed over for excision], DW Actualités/Afrique [DW News/Africa], September 23, 2020, at pp. 9, 10 and 11 of the scanned version of the document Nouvelles preuves. Madjiasra Nako, "Bien qu'interdits, les cas d'excision se multiplient au Tchad " [Although prohibited, excision cases continue to multiply in Chad], RFI, September 12, 2020, at pp. 12 and 13 of the scanned version of the document Nouvelles preuves. Unicef, Mutilations génitales féminines / excision : aperçu statistique et étude de la dynamique des changements [Female genital mutilation/excision: statistical overview and study of the dynamics of change], December 18, 2020, at pp. 14-19 of the scanned version of the document Nouvelles preuves. 12 RAD Rules, SOR/2012-257. 13 In response to question 14 on this form, which is reproduced at p. 49 of the scanned version of the RPD record. 14 RPD Reasons and Decision, supra, endnote 2, at para. 5. 15 Specifically document A-2, which is reproduced at p. 34 of the scanned version of the RPD record. 16 Transcript of the hearing held before the RPD on September 19, 2018, 26 pages, at pp. 6, 7 and 8 of the scanned version of this transcript. 17 Your memorandum, supra, endnote 3. 18 Your BOC Form, reproduced at pp. 9-21 of the scanned version of the RPD record. 19 Transcript of the hearing, supra, endnote 16. 20 Your memorandum, supra, endnote 3. 21 RAD Rules, supra, endnote 7, subparagraph (3)(3)(g)(v). 22 Application, supra, endnote 6. 23 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, at para. 18. 24 Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-566-18, Boswell, January 16, 2019; 2019 FC 54, at para. 29. 25 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, at paras. 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, at paras. 23 and 24. 26 Transcript of the hearing, supra, endnote 16. 27 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 28 RAD Rules, supra, endnote 6, subparagraph (3)(3)(g)(ii). 29 Your memorandum, supra, endnote 3, at pp. 4-8. 30 Bouchra, supra, endnote 5, at para. 31. 31 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, at paras. 16-26. 32 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, at para. 26. 33 Osikoya v. Canada (Minister of Citizenship and Immigration), No. IMM-5059-17, Norris, July 11, 2018; 2018 FC 720, at para. 53. 34 Kazadi v. Canada (Minister of Citizenship and Immigration), No. IMM-4740-04, de Montigny, February 24, 2005; 2005 FC 720, at para. 12. 35 Jiang v. Canada (Minister of Citizenship and Immigration), IMM-358-18, Chief Justice Crampton, October 23, 2018; 2018 FC 1064, at para. 31. He v. Canada (Minister of Citizenship and Immigration), No. IMM-444-19, Phelan, November 7, 2019; 2019 FC 1395, at para. 8. 36 Nur v. Canada (Minister of Immigration, Refugees and Citizenship), IMM-2136-18, Pentney, November 18, 2019; 2019 FC 1444, at para. 32. 37 Betancourt Arocha v. Canada (Minister of Citizenship and Immigration), No. IMM-4052-18, Diner, April 17, 2019; 2019 FC 468, at para. 11, citations omitted. 38 Ibid., at paras. 12 and 13, citations omitted. At para. 23 of his decision, Diner J. also wrote: "While the past is certainly one key indicator, it is not the sole barometer of future persecution. One can meet the serious possibility standard by establishing that similarly situated individuals face the risks that the claimant fears." 39 Karim v. Canada (Minister of Citizenship and Immigration), No. IMM-735-19, McHaffie, April 30, 2020; 2020 FC 566, at paras. 10-25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-24302 MB8-24303 / MB8-24304 RAD.25.02 (January 2020) Disponible en français 2 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