MB8-09096

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 : MB8-09096, MB8-09097, MB8-09098, MB8-09099 Private Proceeding / Huis clos REASONS AND DECISION - MOTIFS ET DÉCISION Person who is the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of the hearing November 22, 2019 Date de l'audience Date of decision November 26, 2019 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Salif Sangaré Conseil de la personne en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX, you and your three children, XXXX XXXX, a 14-year-old adolescent, XXXX XXXX, a 17-year-old adolescent, and XXXX XXXX, a young 18-year-old man, are Lebanese citizens. You are acting as the designated representative of your two children who are still minors. Before the Refugee Protection Division (RPD), you and your children stated that you feared members of Hizballah.1 [2] In its decision, the RPD considered Chairperson's Guideline No. 4,2 analyzed all of the evidence and found that you had not established the merits of your fears of being persecuted or having your lives put at risk by members of Hizballah.3 [3] On appeal, you produced evidence, requested that an oral hearing be held and submitted that the RPD had erred in dismissing your claims for refugee protection by failing to provide clear reasons and perform a detailed analysis of your fears of persecution should you return to Lebanon.4 [4] I found that some of the evidence that you provided on appeal was not admissible (I), that there were sufficient grounds to hold an oral hearing (II), and that, following the hearing, after analyzing all of the evidence, there were sufficient grounds to dismiss the appeal (III). [5] In the following paragraphs, I will explain how I arrived at these findings. My analysis will first focus on the evidence you presented on appeal. It will then focus on the reasons for which I felt it was appropriate to conduct an oral hearing. Lastly, it will focus on the reasons that led me to dismiss your appeal, with your credibility being the determinative issue. I. EVIDENCE PRESENTED ON APPEAL [6] On appeal, you presented a series of documents: - A written statement by XXXX dated XXXX XXXX, 2018 - A written statement by you dated May 11, 2018 - A special engagement and declaration agreement dated XXXX XXXX, 2018 - Documents regarding your application for divorce - An email sent to your lawyer on XXXX XXXX, 2018 - Medical reports issued in Lebanon regarding your son XXXX - Documents regarding the divorce and inequalities between men and women in Lebanon5 [7] I found that some pieces of evidence were admissible while others were not, pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and to relevant case law.6 [8] With regard to XXXX written statement, it does not contain any evidence that arose after the RPD rendered its decision. [9] In his written statement, XXXX states that a report on an incident involving a few young people who participate in Hizballah events was not made available during the hearing before the RPD. However, he did not specify the particular document in question. [10] The medical reports issued in Lebanon regarding XXXX refer to injuries he sustained. That said, your appeal memorandum does not contain a full and detailed submission of these medical reports, as stipulated in the Refugee Appeal Division Rules (RAD Rules).7 In any event, these reports do not name the individuals who caused the injuries or indicate that they are members or associates of Hizballah. As a result, I did not consider these reports to be relevant insofar as they cannot prove or rebut information related to the determinative issue in your appeal.8 [11] As for your written statement and the evidence regarding your divorce application,9 I considered them to be admissible, it being understood that they concern events that occurred after the RPD had rendered its decision. I also found that, at this stage of the proceeding, your statements regarding your relationship with your spouse benefited from the presumption that they were credible or trustworthy. [12] With regard to the special engagement and declaration agreement dated March 13, 2018, it is not admissible as it was provided and analyzed during your hearing before the RPD.10 [13] With regard to the documents concerning the divorce and the inequalities between men and women in Lebanon, you failed to establish that they contain evidence that occurred after the RPD rendered its decision or that, in the circumstances, you would not have presented them before the RPD. In any event, the documentary evidence included in the National Documentation Package (NDP) on Lebanon contains virtually the same information regarding women in that country. II. HOLDING AN ORAL HEARING BEFORE THE RAD [14] In your appeal, I found that the evidence deemed admissible raises serious issues with respect to your credibility, that it is central to the decision with respect to your refugee protection claims and that it could justify allowing or rejecting your refugee protection claims. Consequently, I decided to hold an oral hearing, which took place on November 22, 2019. [15] On November 6, 2019, you were sent a notice to appear at this hearing. It sets out the documents found to be admissible for the appeal and refers to the two documents disclosed by the RAD.11 You were also sent a list of the issues to be examined during the hearing. [16] On the morning of the hearing itself, via your lawyer, you provided documents that were not included in your appeal record, namely, a judgment of divorce dated XXXX XXXX, 2018; a record of proceedings for the hearing held on XXXX XXXX, 2018, before the Superior Court; and a divorce certificate dated XXXX XXXX, 2018. [17] I then pointed out that rules 29 and 37 of the RAD Rules were not followed. No written authorization request to use these documents dating from 2018 was provided. I also referred to the content of subrule 37(2) of the Rules. Under this paragraph, the RAD must not allow a party to make an application orally at the hearing unless the party, with reasonable effort, could not have made a written application before that date. Your lawyer then stated that he met with you on the Monday prior to the hearing, that he was not in possession of these documents before then and that they did not take the RAD by surprise as they were the result of motions included in the appeal record. I did not find these arguments convincing. Nevertheless, I decided to show some flexibility since we were all already in the hearing room. I therefore authorized the use of these documents in the end. They were admitted into evidence in a bundle labelled A-2. III. ANALYSIS OF THE APPEAL [18] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage with respect to the credibility assessment.12 This being said, it is not the role of the RAD to conduct a de novo review of refugee protection claims, but instead to consider whether the RPD has in fact erred as alleged by the appellants.13 [19] After conducting my own analysis of the record, notably by listening to the recording of the hearing held before the RPD,14 having made sure to apply Chairperson's Guideline 4 and having myself held a hearing, I find that the RPD did not enjoy any particular advantage and that the standard of review to be applied is that of correctness. Having applied this standard of review, I consider that your appeal must be dismissed. My reasons are as follows. A. Your fears with regard to your marital status [20] When they swear to the truth of certain allegations, refugee protection claimants are presumed to be telling the truth. However, the presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation for those inconsistencies.15 The RPD may draw negative inferences based on implausibilities, inconsistencies or omissions. All of the evidence must be evaluated, and RPD and RAD members are entitled to use their common sense and human experience.16 * A serious omission [21] In your memorandum, you stated that, since the dismissal of your claim for refugee protection, you have been pressured by your husband, have received death threats and have suffered psychological abuse.17 [22] In your appeal record, you included an email that you had forwarded to your lawyer. In the email, you refer to a telephone conversation you had, XXXX days earlier, with your husband. You state that your husband ordered you to go back to Lebanon with your children. You state that he told you he would never forgive you for not doing what he told you to do, that you had to return to Lebanon and that he would make you regret not wanting the same things he wanted. You state that he refused to divorce you and that, once you went back to Lebanon, he would take revenge on you, prevent you from seeing the children and throw you out onto the street.18 [23] During the hearing on November 22, you stated that after your claim for refugee protection was rejected, your husband began to threaten you and demanded that you obey his orders. You also stated that you wanted a divorce because you were afraid of him. When asked to explain the grounds you had provided for a divorce, you stated that you told the judge that your husband was a mean person. He oppressed you. He made you unhappy. He beat you all the time and psychologically abused you. He had pointed a gun at you. He had kicked you out of the house, and then prevented you from seeing your two oldest children for two months. [24] You were confronted with the fact that, in your claim for refugee protection and during your testimony before the RPD, you never mentioned fearing your husband. You then explained that, in the past, you coped with the situation by acting like a weak woman who wanted to avoid conflict. You also explained that, after the RPD's decision, you could no longer tolerate the situation. [25] During the hearing held on March 21, 2018, before the RPD, you talked about your husband, primarily with respect to his involvement in the agreement you allegedly signed on XXXX XXXX, 2018, XXXX XXXX XXXX earlier.19 According to that agreement, at the request of his father, your husband agreed to your daughter's marriage, now age 17, to an individual named XXXX XXXX. However, it should be noted that in the agreement in question, there is no reference to Hizballah. [26] In your testimony before the RPD, you stated that your husband and your parents-in-law had made this agreement with Hizballah. Later, you stated that it was your parents-in-law who had made this agreement. That your husband had agreed to everything because he was pressured to do so. That he was powerless against them. That he tried to show them that there were not any problems, that you had reconciled and that you could go back to Lebanon. You stated that you had argued with your husband and your parents-in-law about this agreement. You also stated that your husband sent you this document via your mother.20 [27] In your claim for refugee protection and during your testimony before the RPD, it is clear to me that you failed to mention that you feared your husband because he was mean and beat you all the time. I consider this a serious omission. I also do not find your explanations in this regard convincing. It seems particularly questionable that you could only express this fear after receiving the RPD's decision to dismiss your claim for refugee protection. [28] With respect to the obstacles that previously prevented you from mentioning this fear, I find that there were opportunities for you to corroborate your allegations in this regard, such as through a psychological report. I am of the opinion that this is clearly a situation in which it was reasonable to expect you to make an effort to obtain corroborating evidence for your allegations regarding your mental state.21 [29] Given the serious omission and the fact that you did not make any effort to provide a psychological report, I find that your credibility with regard to your fears of your husband is significantly affected. * Probative value granted to the documents regarding your divorce [30] On appeal, you provided a number of documents regarding your divorce application. [31] I read the documents concerning your divorce application included in your appeal record.22 There was not a single document among these indicating that the divorce application, your affidavit, your lawyer's statement and the respondent's opinion were actually received and registered by the Superior Court - District of Laval.23 [32] The respondent's opinion24 does not mention the respondent's name or address. It states that, to respond to the application, the respondent must appear in person or via a lawyer at the Laval courthouse. Otherwise, a default judgment may be rendered against the respondent. [33] In the request to provide notification of the divorce proceeding by email,25 it states that you communicate regularly, that is, at least XXXX XXXX XXXX with your husband by electronic messaging. It also states that your husband agreed to receive the divorce application procedure by email, as indicated in his message dated XXXX XXXX, 2018. Your appeal record contains a message addressed to your lawyer indicating that XXXX XXXX agreed to receive the divorce documents by email. That said, upon reading that document, nothing establishes that it was actually sent by your husband. More importantly, none of the documents you provided as evidence establish that the Superior Court actually granted the notification request by email. [34] I also read the documents you provided as evidence on the day of the hearing itself, i.e. last XXXX XXXX. [35] At the end of the divorce judgment, there is an illegible signature, and under the signature, the following words are indicated in block letters: Judge of the Superior Court. There is also a note stating that the document is a certified copy, as well as the signature of a deputy registrar. [36] The record of proceedings for the hearing is signed by a court clerk. It indicates that the hearing began at XXXX XXXX XXXX p.m. and ended at XXXX XXXX XXXX p.m., that the respondent was absent and that the divorce judgment was rendered. [37] The divorce certificate attests that your marriage, which was celebrated in Lebanon on XXXX XXXX, 1998, was dissolved by the judgment that took effect on XXXX XXXX, 2018. It is signed by a court clerk. [38] A decision-maker from the RPD or RAD may make a finding on the weight to give a document after assessing its credibility or its probative value or both.26 Where the testimony is not credible, it is reasonable for the RPD or RAD to have concerns regarding the credibility of the documentary evidence supporting the claim for refugee protection. It may accord it minimal weight.27 [39] During his submissions, your lawyer submitted that the Superior Court granted your divorce on the grounds that you had stated you feared for your life if you were to return to live in Lebanon. This statement is found at paragraph 12 of the divorce application, which you included in your appeal record.28 That said, in the divorce judgment and the record of proceedings for the hearing before the Superior Court, there is no clear indication in this regard. In any event, determining the status of a refugee or a person in need of protection comes under the jurisdiction of the RPD and the RAD. [40] Although I agree that you are now divorced, in my opinion, these documents do not establish that your ex-husband was opposed to the divorce or that he was angry with you because of it or because you did not obey his orders. As a result, no probative value should be given to these documents with regard to your fear of being persecuted by your ex-husband should you return to Lebanon. [41] In addition, during the hearing on November 22, your two sons did not state that they were afraid of your ex-husband. As for your daughter, during the hearing, she stated that he was afraid of having to marry someone she did not want to marry should she have to return to live in Lebanon. This fear is related to the fact that the agreement was allegedly made to please members of Hizballah. I will therefore analyze this in the following paragraphs. B. Your fears regarding Hizballah [42] I will first analyze your fears regarding your daughter, then your fears concerning your son and, lastly, your fears with respect to your own situation. * Regarding your daughter's engagement [43] In your memorandum, you submitted that the RPD erred by not taking into consideration the document regarding the engagement, which was generated by your parents-in-law, not by your husband. You explained that your daughter's marriage plans had been made under pressure by your husband's parents after you and your children left Lebanon. You submitted that the documentary evidence referred to by the RPD dates back to 2007 and does not reflect the reality of Lebanese society today.29 [44] During the hearing on March 21, 2018, the RPD asked several questions with respect to this topic.30 In its decision, the RPD performed a detailed analysis of your testimony and found that your explanations on this topic were unsatisfactory.31 In my opinion, it did not commit an error. [45] Based on my own analysis of all of the evidence, as I mentioned earlier, the agreement that was allegedly made for the purposes of your daughter marrying an individual named XXXX XXXX does not make any reference to Hizballah.32 Furthermore, like the RPD, I am of the opinion that the behaviour of your husband, who allowed you to leave Lebanon and live with your children in Canada,33 does not match that of an individual who wishes to force his daughter to marry someone she has not chosen. Lastly, with respect to the documentary evidence, the figures mentioned by the RPD in its decision remain relevant. In fact, a document published by the OECD in 2014 still mentions them and explains that women and men in Lebanon are generally free to choose the person they wish to marry, although the family is expected to play a certain role.34 * Regarding the pressure on your oldest son [46] In your memorandum, you submitted that your oldest son, XXXX, explained at the hearing before the RPD how members of Hizballah were coming to his school; how they had come to encourage young people to join their party, although they were not recruiting by force; and that because your son refused to participate in training, he was considered somewhat of a traitor and was excluded from certain activities.35 [47] In my opinion, the RPD did not commit any errors by finding your concerns over the pressure exerted on your oldest son to join Hizballah unfounded. [48] During the hearing on March 21, 2018, the RPD asked several questions on this topic.36 Your oldest son specifically admitted that young people were not being recruited by force. He stated that the young people who did not want to go with the Hizballah members sometimes felt obligated to, in order to please them and feel safe.37 [49] In its decision, the RPD performed a detailed analysis of the testimonial and documentary evidence before finding that your fears regarding Hizballah were unfounded.38 [50] This is not a situation in which Hizballah allegedly engaged in the forced recruitment of your oldest son.39 That said, the documentary evidence indicates that Hizballah uses a system of incentives in its membership campaigns within the Shi'ite community in Lebanon.40 The fact remains that your oldest son continued to attend the same school where he was pressured to join Hizballah up to the day before he left for Canada.41 In my opinion, such behaviour does not match that of someone who fears they or their son will be persecuted or have their life threatened. At the hearing on November 22, your oldest son stated that he did not want to participate in Hizballah activities should he eventually return to Lebanon. * With regard to your own fear of Hizballah [51] In your memorandum, you submitted that it was unreasonable to invoke the internal flight alternative in Beirut insofar as Hizballah exerts its power across the country. You also submitted that your stay in Beirut was only temporary, lasting the time needed for your children to finish their school year.42 [52] In its decision, the RPD refers to your testimony regarding this issue. It notes that, from XXXX to XXXX 2017, you lived in Beirut without encountering any problems with respect to Hizballah.43 You even stated in your testimony that you made donations to a female Hizballah member. You also stated that if you had refused to make that donation, Hizballah members would not have personally attacked you, but that they still wanted to take your children.44 [53] In your appeal, you did not submit any evidence establishing that, since your departure, Hizballah members have been looking for you or either of your children. [54] My finding is that, in this regard, the RPD did not commit an error by finding that you and your children had not established a serious possibility of being persecuted or having your lives put at risk in Beirut. CONCLUSION [55] For these reasons, I confirm the RPD's determination, namely, that you, XXXX XXXX, and your three children, XXXX XXXX, XXXX XXXX and XXXX XXXX, are not Convention refugees under section 96 or persons in need of protection under section 97 of the IRPA. [56] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette November 26, 2019 Date IRB translation Original language: French 1 The Basis of Claim Forms (BOC Forms) are reproduced at pages 55 to 95 of the Refugee Protection Division (RPD) record. 2 Immigration and Refugee Board of Canada (IRB). Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996. 3 RPD reasons and decision, March 26, 2018, pages 3 to 12 of the RPD record. 4 Appellants' memorandum, May 11, 2018, pages 51 to 56 of the appeal record. 5 These documents are reproduced at pages 6 to 50 of the appeal record. 6 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. Casilimas Murcia v. Canada (Minister of Citizenship and Immigration), No. IMM-775-19, Pamel, September 17, 2019; 2019 FC 1182, paragraphs 43, 49 and 50. Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21. 7 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, rule 3, subrule 3, paragraph (g)(iii). 8 Singh, supra, endnote 6, paragraph 38. 9 For further clarification, here are the pieces of evidence that I found admissible: - Paragraphs 29 to 34 of your written statement, pages 10 and 11 of the appeal record - Legal documents regarding the divorce application, pages 14 to 28 of the appeal record - The email regarding conversations between you and your spouse, page 29 of the appeal record 10 This document is reproduced at pages 257 and 258 of the RPD record. 11 RAD-1: IRB, National Documentation Package (NDP) on Lebanon, March 29, 2019. RAD-2: Research Directorate, Immigration and Refugee Board of Canada (IRB), Lebanon: Hezbollah recruitment practices; including whether forced recruitment occurs, in particular in southern Lebanon and in the Beqaa valley; whether there are consequences for refusing to be recruited (2015-February 2019), 2 pages. 12 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 13 Canada (Minister of Public Safety and Emergency Preparedness) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. 14 Recording of the hearing held before the RPD on March 21, 2018, 00:01 to 02:29.43. 15 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 16 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 17 Appellant's memorandum, paragraph 38, page 54 of the appeal record. 18 This email is reproduced on page 29 of the appeal record. 19 This document is reproduced at pages 257 and 258 of the RPD record. 20 Recording of the hearing held before the RPD on March 21, 2018, 01:25:00 à 01:34:40. 21 With respect to knowing when refugee protection claimants can be asked to provide documents corroborating their claims, a detailed analysis is provided in Luo v. Canada (Minister of Citizenship and Immigration), No. IMM-5059-18, Strickland, June 17, 2019; 2019 FC 823, paragraphs 18 to 22. 22 These documents are reproduced at pages 14 to 27 of the appeal record. 23 This document is reproduced at page 21 of the appeal record. 24 This document is reproduced at page 22 of the appeal record. 25 This document is reproduced at pages 25 and 26 of the appeal record. 26 Magana v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 27 to 31. 27 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. 28 This document is reproduced at pages 15, 16 and 17 of the appeal record. 29 Appellants' memorandum, paragraphs 31 to 36, page 54 of the appeal record. 30 Recording of the hearing held before the RPD on March 21, 2018, 01:26:00 to 01:34:00. 31 RPD reasons and decision, paragraphs 25 to 32, pages 9 and 10 of the RPD record. 32 This document is reproduced at pages 257 and 258 of the RPD record. 33 In this regard, refer to the permission to travel, which includes permission to live in Canada, signed before a notary on May 16, 2017 and reproduced at pages 143 and 144 of the RPD record. 34 RAD-1: IRB, NDP on Lebanon, March 29, 2019: Tab 5.3, OECD Development Centre, Lebanon. Social institutions and Gender Index 2014, 13 pages, at page 2. 35 Appellants' memorandum, paragraphs 12 to 20, pages 52 to 53 of the appeal record. 36 Recording of the hearing held before the RPD on March 21, 2018, 28:00 to 43:10. 37 Ibid., 40:00 to 40:30. 38 RPD reasons and decision, paragraphs 11 to 24, pages 5 to 9 of the RPD record. 39 As this was the case in two recent proceedings ruled on by the Federal Court of Canada: Khadra v. Canada (Minister of Citizenship and Immigration), No. IMM-389-19, Lafrenière, September 9, 2019; 2019 FC 1150. Zaiter v. Canada (Minister of Citizenship and Immigration), No. IMM-787-18, Norris, July 10, 2019; 2019 FC 908. 40 RAD-1, IRB, NDP on Lebanon, March 29, 2019: Tab 7.4, Research Directorate, IRB, Lebanon: Recruitment practices of Hezbollah, October 29, 2015, 8 pages, at page 2. Ibid.: Tab 7.8, Research Directorate, IRB, Lebanon: Hezbollah, November 6, 2018, 14 pages, at pages 5 to 8. 41 In this respect, refer to the information on form IMM 5645, which is reproduced at pages 171 and 172 of the RPD record. This issue was also addressed during the hearing before the RPD, 01:14:00 to 01:21:30. 42 Appellant's memorandum, paragraphs 36 and 37, page 54 of the appeal record. 43 RPD reasons and decision, paragraphs 36, 37 and 38, page 11 of the RPD record. 44 Recording of the hearing held before the RPD on March 21, 2018, 01:09:25 to 01:13:30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB8-09096, MB8-09097, MB8-09098, MB8-09099 RAD.25.02 (2014.09.11) Disponible en français