MB7-23656

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 RAD : MB7-23656 MB7-23657 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision May 6, 2019 Date de la décision Panel Normand Leduc Tribunal Counsel for the appellant(s) Me Jacques Despatis Conseil(s) du (de la/des) appelant(e)(s) Designated representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX and her minor daughter, XXXX XXXX XXXX, citizens of Djibouti, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] They are not presenting any new evidence on appeal and are not asking that a hearing be held before the Refugee Appeal Division (RAD). [3] The principal appellant, XXXX XXXX, was appointed as designated representative of the minor appellant, XXXX XXXX XXXX. DETERMINATION OF THE APPEAL [4] Under paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [5] In her Basis of Claim Form (BOC Form), the principal appellant alleges that she fears the authorities of her country by reason of her and her spouse's political activities in the XXXX opposition party and the Union for National Salvation (USN) coalition. [6] The appellant alleges, among other things, that she was questioned and threatened by police officers in XXXX 2015, as they were searching for her husband, and that she was detained in XXXX 2016. [7] The appellant also alleges a fear of her in-laws, who, according to her, want the minor appellant to undergo excision. In this regard, she alleges that some cousins threatened and assaulted her in XXXX 2016. [8] The appellants left their country on XXXX XXXX, 2016, for the United States and then came to Canada to claim refugee protection. [9] The RPD rejected the refugee protection claim on the grounds that the principal appellant's allegations were not credible. The RPD identified a significant contradiction in the evidence presented, specifically that the stamps in the appellant's passport indicate that she was not in her country in XXXX 2015 when the police officers allegedly invaded her home looking for her spouse, as she alleges in her BOC Form. [10] Before the RAD, the appellant submits that the RPD erred in two ways: first, by failing to assess the appellants' fear based on the threat of female genital mutilation (FGM); second, by failing to conduct an analysis under paragraph 97(1)(b) of the IRPA, based on the fact that it is giving her the benefit of the doubt regarding her membership in the political opposition parties. [11] For those reasons, the appellants are asking the RAD to set aside the RPD's determination and refer the matter to the RPD for re-determination. [12] I am setting aside the RPD's determination on the basis of the first reason cited by the appellants. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [13] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record, in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings in assessing the credibility of or the weight to be given to the oral testimony it hears in situations where it enjoys a particular advantage. The RAD must then show a degree of deference to the RPD's findings (Canada v. Huruglica, F.C.A., No. A-470-14). Reasons will be provided in my analysis should I find that the RPD enjoyed a particular advantage. ANALYSIS [14] The issue in this case before the RAD is whether the RPD erred by failing to address the appellants' alleged fear based on the risk of FGM. [15] In my view, the answer to this question is yes. [16] As submitted by the appellants, the RPD does not address this fear in its reasons. This fear was clearly alleged in the principal appellant's BOC Form filed before the RPD, and this fear is clearly different from the one alleged by reason of the principal appellant's political opinion. [17] The subject of the appellants' fear based on FGM, which in my opinion applies as much to the minor appellant (who would be subjected to the FGM) as it does to the principal appellant (who might suffer the consequences of her refusal to submit her daughter to FGM), was not addressed during the hearing before the RPD. Accordingly, I am unable to determine whether the principal appellant's allegations on this subject are credible. [18] The RAD cannot hold a hearing to question her, given that no new evidence has been filed on appeal. I am also of the view that the questions of the availability of state protection in Djibouti and of an internal flight alternative (IFA) for the appellants in Djibouti may also be relevant in this case. [19] For that reason, I set aside the RPD's determination and refer the matter to it for re-determination by a differently constituted panel. [20] Furthermore, in their memorandum, the appellants do not dispute the RPD's finding regarding the credibility of the appellant's allegations about the problems she claims to have experienced as a result of her or her spouse's political activities. [21] I do not see the RPD's alleged error in this matter. In my opinion, the contradiction identified by the RPD between the dates of the events alleged to have occurred in XXXX 2015 and the fact that the principal appellant was not in the country in XXXX 2015 is significant enough to undermine the credibility of those allegations. [22] In their memorandum, the appellants submit that the RPD, having nevertheless believed that the principal appellant was a member of an opposition party or coalition of parties, should have assessed the appellants' fear pursuant to paragraph 97(1)(b) of the IRPA. [23] I do not agree with that submission. [24] First of all, if a fear exists for the appellants by reason of the principal appellant's and her spouse's membership in a political party, it should have been assessed against section 96, as the fear would then be by reason of political opinion. [25] Second, that fear as such was not alleged before the RPD. And on top of that, the RPD did in fact address it, albeit briefly, in paragraph 26 of its reasons, concluding that mere membership in an opposition party was not sufficient to demonstrate a well-founded fear of persecution on that ground. REMEDY [26] I conclude that the RPD's decision is erroneous in fact and in law, and I find that I am unable to correctly assess the principal appellant's credibility regarding the appellants' fear as it relates to FGM, as well as the question of whether they could avail themselves of state protection and an IFA if needed, without reviewing the evidence presented before the RPD. [27] The RAD, under paragraph 111(1)(c) of the IRPA, refers the matter to the RPD. [28] The appeal is allowed. Normand Leduc Normand Leduc May 6, 2019 Date IRB translation Original language: French 1 5 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB7-23656 MB7-23657