MB3-01666

RAD File No. / N° de dossier de la SAR : MB3-01666 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXXX XXXXX XXXXX XXXXX Appelant(e)(s) Appeal Considered / Heard At Montréal, Quebec Appel instruit à Date of Decision August 20, 2013 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Chantal Ianniciello Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister Éric Therriault Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXXX XXXXX XXXXX XXXXX XXXXX, a citizen of Cameroon, is appealing a decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She has submitted new evidence in support of her appeal. [3] She is asking that a hearing be held pursuant to subsection 106(6) of the Immigration and Refugee Protection Act (IRPA). DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the IRPA, the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that XXXXX XXXXX XXXXX XXXXX is neither a "Convention refugee" pursuant to section 96 of the IRPA nor a "person in need of protection" pursuant to section 97 of the IRPA. BACKGROUND [5] The appellant, a 21-year-old young woman from the city of XXXXX, alleged that she has lived with the family of her uncle, her father's brother, since she was a child, and that her uncle told her in XXXXX 2001 that he wanted to have her marry one of his friends to pay a debt. She claimed that she was against the marriage, which was scheduled to occur in XXXXX 2013. [6] The appellant alleged that when her parents found out about this in XXXXX 2012, they arranged for her departure to Canada by applying for a visa for her. The appellant left Cameroon for Canada on XXXXX, 2013, and claimed refugee protection when she arrived. [7] The RPD found that the appellant was not credible because her testimony concerning her main allegations was vague and confusing. Among other things, the RPD found that the appellant's credibility was undermined by the fact that she knew virtually nothing about the man she was supposed to marry because this did not interest her, and by her testimony concerning her activities between XXXXX 2011 and her departure for Canada. The RPD also concluded that the appellant's forced marriage allegations contradicted the documentary evidence submitted. [8] The appellant submits that the RPD made the following errors in its decision: ? The RPD did not explain why it found the appellant's testimony vague and confusing, and therefore not credible. ? The RPD looked for harmful elements that could justify a negative determination instead of the truth. ? The RPD did not specify the documentary evidence it was referring to in order to contradict the appellant's allegations, and it failed to allow her to explain the alleged contradictions. The appellant also submitted to the RAD new documentary evidence on forced marriages in Cameroon, which in her opinion, contradicts the RPD's conclusions and confirms her own allegations. [9] For those reasons, the appellant requests that the RAD set aside the RPD's determination and grant her refugee protection or refer the matter to the RPD for re-determination. [10] The Minister of Public Safety and Emergency Preparedness (the Minister) intervened in this case and submits that the new evidence on forced marriages in Cameroon submitted by the appellant is insufficient to overturn the RPD's decision, and that, in any case, the appellant did not demonstrate before the RPD that such a forced marriage awaited her upon her return to Cameroon. [11] The Minister is asking the RAD to dismiss the appeal and to confirm the RPD's determination. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [12] The appellant submitted the following new document on appeal: ? Response to Information Request CMR104378.E published by the IRB, dated April 10, 2013. [13] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [14] I find that this document is admissible. Although it is dated April 10, 2013, and the appellant's RPD hearing was held on April 25, 2013, I consider that, as the appellant claims in her memorandum, this document was not available until the national documentation package was updated on May 3, 2013. Moreover, the Minister does not oppose the submission as such of this exhibit, although he alleges that its content is insufficient to show that the RPD erred in its determination. I will set out my reasons on this subject in greater detail later on. DECISION ON WHETHER TO HOLD AN ORAL HEARING [15] The appellant requested an oral RAD hearing in her memorandum. [16] The Minister, in turn, submitted that no oral hearing should be held in this case because the criteria in subsection 110(6) of the IRPA have not been met. [17] Pursuant to subsection 110(6) of the IRPA, the RAD may hold an oral hearing if, in its opinion, the new evidence presented on appeal is admissible and meets the following three criteria: (1) it raises a serious issue with respect to the credibility of the person, (2) it is central to the decision with respect to the refugee protection claim; and (3) if accepted, it would justify allowing or rejecting the refugee protection claim. [18] I find that no oral hearing is required for the following reasons: [19] I find that this new evidence, although admissible to the RAD, would not, however, justify allowing or rejecting the refugee protection claim, as I will explain later in the Analysis section of my decision. STANDARD OF REVIEW [20] The error alleged by the appellant-that the RPD failed to explain why it found the appellant's testimony vague and confusing, and consequently not credible-is a question of fact, and is therefore reviewable on a standard of reasonableness (Dunsmuir v. New Brunswick, 2008, SCC 9). In paragraph 47 of Dunsmuir, the Court states that reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Judicial deference is therefore required, and deference must be given to the RPD's decision. [21] The other errors alleged by the appellant-that instead of looking for the truth, the RPD sought harmful elements that could justify a negative determination, and that the RPD did not specify which documentary evidence it was referring to in order to contradict the appellant's allegations, and also did not allow her to explain the alleged contradictions-are in fact errors of procedural fairness. A breach of procedural fairness by the RPD would mean that the RPD's determination would be wrong in law. The applicable standard of proof in this case is therefore the correctness standard. ANALYSIS [22] The first issue in this case is whether the RPD adequately explained in its reasons why it found the appellant's testimony vague and confusing and therefore not credible. [23] I note first that the appellant wrote in paragraph 14 of her memorandum that: [translation] The Refugee Protection Division's negative determination is based on the conclusion that the appellant did not contradict the information to the effect that forced marriages occur mainly in the extreme north of the country and in Muslim areas. [24] I disagree with this statement. It is clear after reading paragraphs 10, 11 and 12 of the RPD's reasons that it had found that the appellant's own testimony was [translation] "often vague and confusing with respect to the main allegations concerning, among other things, the alleged marriage and the man her uncle wanted to have her marry" (paragraph 10). [25] Then, in paragraph 11 of its reasons, the RPD gives an example of what it finds vague and confusing in the appellant's testimony: that it did not find the appellant's explanations reasonable when she stated that she was not interested in the man her uncle wanted her to marry to justify the fact that she (the appellant) did not know any details about this man, including his name and business. The RPD reached this conclusion based also on the appellant's cultural profile and level of education, which is high. [26] In paragraph 12 of its reasons, the RPD provides other examples of what it considered vague and confusing in the appellant's testimony, including the reasons her uncle allegedly wanted to have her married without discussing it further with her parents; why there was a long delay between the announcement of the marriage in XXXXX 2011 and the date the marriage was scheduled to occur, in XXXXX 2013; and the reasons for which the appellant did not talk to her parents about the marriage until late 2012. [27] The issue of the documentary evidence allegedly contradicting the appellant's testimony concerning forced marriages is, in my opinion, incidental to the finding that the appellant lacks credibility. The RPD's analysis in this regard starts in paragraph 13 of its reasons with [translation] "moreover" and ends with the RPD concluding in paragraph 14 of its reasons that this contradiction between the documentary evidence and the appellant's testimony [translation] "once again undermines the credibility of the central allegation that there is an attempt to force her to get married." [28] Based on the foregoing, I am of the opinion that the RPD's finding concerning the appellant's credibility, as explained in paragraphs 10 to 12 of its reasons, is reasonable because it is justified, transparent and intelligible, and it also falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [29] As a result of the conclusions I reached in the foregoing paragraphs, the new document that the appellant presented to the RAD as evidence concerning forced marriages in southwestern Cameroon, even if it were to make the RPD's conclusion in that regard unreasonable, could not justify allowing the refugee protection claim, within the meaning of paragraph 110(6)(c) of the IRPA, hence my decision not to hold a hearing in this case. [30] The second issue in this case is to determine whether the RPD committed a breach of procedural fairness by seeking harmful elements that could justify a negative determination instead of seeking the truth. [31] In my opinion, the appellant did not show that the RPD breached procedural fairness. I am of the opinion that the very purpose of an RPD hearing is to enable questions to be asked on subjects of concern to the panel, including the credibility of the claimant's allegations in her Basis of Claim Form, without there being an aim to [translation] "prepare a harmful case against the claimant" as alleged in the appellant's memorandum. I also note that the appellant was represented by counsel at the RPD hearing and that the latter had the opportunity to ask any questions he deemed relevant, and that he did not object to the panel's questions. [32] The last issue in this case is whether the RPD committed an error by failing to indicate which documentary evidence it was referring to in order to contradict the appellant's allegations, or by not allowing her to explain. [33] I find once again that the RPD did not err in this regard. [34] First, in my opinion, the RPD is not required, when it confronts a refugee protection claimant with documentary evidence that in its opinion contradicts the claimant's allegations, to immediately indicate the exact document or part of the document it is referring to unless the claimant or their counsel requests this, which did not occur in the case at hand. In my opinion, the important thing when the RPD confronts a claimant with evidence that seems to contradict their testimony is that the RPD indicate how the evidence in question is contradictory, in order to enable the claimant to explain themself or to comment, which the RPD did in this case. The RPD will be required to identify the document or part of a document if the situation so requires or if the claimant or their counsel requests that it do so. [35] I am also of the opinion that the appellant failed to show that the RPD did not provide her with an opportunity to explain the possible contradictions between the documentary evidence and her testimony. I listened to the recording of the RPD hearing, and the appellant's counsel himself stated at the beginning of the hearing that his client was [translation] "shy and soft-spoken." In my opinion, the excerpt from the hearing transcript provided by the appellant in her memorandum shows that the RPD allowed the appellant to answer its questions and also showed that she is shy and reserved. I also reiterate that the appellant was represented by counsel at the RPD hearing and that the latter could have objected to the RPD's questions if he felt that the RPD did not allow the appellant to respond, which was not the case, or ask questions himself to clarify his client's answers and explanations. REMEDIES [36] For these reasons, I confirm the determination of the RPD, namely, that XXXXX XXXXX XXXXX XXXXX is neither a "Convention refugee" nor a "person in need of protection." [37] The appeal is dismissed. Normand Leduc Normand Leduc August 20, 2013 Date IRB translation Original language: French REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / MINISTER'S INTERVENTION / FORCED MARRIAGE / CREDIBILITY / NEW EVIDIENCE / DOCUMENTARY EVIDENCE / PROCEDURAL FAIRNESS / HEARING / DENIAL / STANDARD OF REVIEW / FEMALE / CONFIRM THE DETERMINATION / CAMEROON 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB3-01666 9