Docket: IMM-1481-16
Citation:
2016 FC 1198
[ENGLISH TRANSLATION]
Ottawa, Ontario, October 27, 2016
PRESENT: The Honourable Madam Justice Gagné
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BETWEEN:
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AWA DIEDHIOU
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Awa Diedhiou is applying for judicial review of
a decision rendered by the Refugee Appeal Division (RAD), by which the RAD
rejected her appeal of a negative decision rendered by the Refugee Protection
Division (RPD). Both divisions determined that the applicant’s refugee
protection claim was not credible, but the RAD also determined that the
applicant had failed to demonstrate that no state protection would be available
to her if she were to return to her country, Senegal. The RAD refused to allow
fresh evidence and to hold a hearing. The RAD therefore rendered its decision
based on the RPD’s record.
II.
The facts
[2]
The applicant is a 34-year-old citizen of
Senegal. Her father died in 2006, and she claims that in January 2014, she
was informed by her mother that she would be forced to marry her mother’s
cousin—a 69-year-old man—and that she would become his third wife.
[3]
In shock, the applicant apparently informed her
mother that she would rather die than marry this man.
[4]
In February 2014, the applicant allegedly
attempted suicide by ingesting several medications. She was reportedly treated
by Dr. Nouha Sonko of the Service d’assistance médicale d’urgences de la
commune de Grand-Yoff, in Senegal.
[5]
Despite her suicide attempt, the applicant was
informed by her mother that she would have to marry her cousin, as he had
already paid her dowry. Since the wedding was scheduled for June 21, 2014,
the applicant allegedly fled her family home on June 20, 2014. She hid at
the home of an aunt until this aunt informed her mother. Her future husband
then allegedly contacted and threatened her.
[6]
The applicant apparently fled again, this time
to the home of her female friend, Astou.
[7]
She received her Senegalese passport on
August 18, 2014, and, two days later, she applied for a Canadian visitor
visa.
[8]
While she was awaiting an answer regarding her
visa application, her family found her at her friend’s home in
November 2014. A new wedding date was allegedly set for February 14,
2015.
[9]
On November 19, 2014, the applicant
received her Canadian visitor visa.
[10]
The applicant’s sister made efforts to get her a
plane ticket, but, lacking sufficient funds, was unable to buy one until
February 4, 2015, for a departure date of February 8, 2015.
[11]
The applicant arrived in Canada the following
day, and filed for refugee protection in Canada on March 31, 2015,
claiming that since she had refused to marry the man whom her family had chosen
for her, she feared for her life, her safety, and for her physical and
psychological integrity, if she were to return to Senegal.
III.
The RPD’s decision
[12]
The RPD denied the applicant’s claim for refugee
protection on the grounds that it was not credible and that the applicant had
not demonstrated a subjective fear of returning to her own country.
[13]
Firstly, the RPD found that the applicant’s
delayed departure from Senegal undermined her credibility. If she had had a
real fear of persecution, she would have taken steps to leave the country much
sooner after obtaining her visa.
[14]
Secondly, regarding the medical certificate
filed by the applicant in corroboration of her suicide attempt, the RPD
determined that it was forged. The document bears a logo that is of poor
quality and that includes the word "solidarité" written backwards.
The applicant testified that she had received this document on
February 17, 2014, whereas it is dated May 22, 2015. When confronted
with this discrepancy, she explained that her mother had the original and that
she had been unable to get it back. Therefore, she had to obtain a copy from
the hospital. The RPD did not accept this explanation and held that this
document negatively impacts the applicant’s credibility. The RPD does not
believe that the applicant attempted suicide.
[15]
Thirdly, the RPD found that the applicant’s
failure to include, in her immigration form IMM-5669, her address while living
with her aunt also impacts her credibility.
[16]
Fourthly, the RPD wondered about the fact that
the applicant’s sister, who lives in Canada and who could have corroborated a
number of the applicant’s allegations, neither testified nor provided a written
account of the facts before the RPD. The RPD voiced its concerns at the
hearing, but the applicant replied that her sister had to go to an appointment
with her lawyer.
[17]
Lastly, regarding the other documents submitted
into evidence by the applicant, the panel granted them very little weight. The
applicant’s work certificate is in no way related to her allegations of
persecution and is from a previous job. The emails produced by the applicant do
not indicate from whom they are sent and, worse still, the sender’s email
address is none other than the applicant’s.
[18]
After having examined all of the evidence
submitted by the applicant, and consequently the negative conclusions regarding
her credibility, the RPD concluded that she is neither a "Convention refugee" nor a "person in need of protection" and denied
her claim for refugee protection.
IV.
Impugned decision
A.
The admissibility of the documents presented as
part of the appeal
[19]
Before the RAD, the applicant attempted to
submit two documents that had not been before the RPD:
·
A letter from Dr. Nouha Sonko, dated
August 5, 2015, in which he addresses the RPD’s allegations that the
medical certificate he prepared was forged;
·
A letter from the applicant’s sister, dated
July 25, 2015.
[20]
Citing subsection 110(4) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), the RAD
reiterated that an appellant may present before the RAD 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. The RAD recalled that since
subsection 110(4) uses the date on which the refugee protection claim was
denied as the cut-off date, an applicant generally has some time to perfect his
or her case before the RPD, by making an application to this effect (Refugee
Protection Division Rules, SOR/2012-256, section 43).
[21]
The RAD first ruled on the admissibility of
Dr. Sonko’s letter.
[22]
In this letter, Dr. Sonko contests each of
the RPD’s arguments alleging that the medical certificate he issued was a
forgery. The RAD is of the opinion that although this letter was written after
the applicant’s refugee claim was rejected, it does not meet the criteria set
out in subsection 110(4) of the IRPA.
[23]
Firstly, the letter does not address events that
have arisen since the refugee claim was rejected by the RPD.
[24]
Also, the RAD concluded that this letter is
neither relevant nor credible (Olowolaiyemo v. Canada (Citizenship and
Immigration), 2015 FC 895).
[25]
It is not relevant since it serves only to
counter the RPD’s determination that the medical certificate was forged, and
since it does not address the fundamental aspects of the refugee claim. The RAD
added that [translation] "whether or not the appellant tried to take her own
life, as sad as such a prospect is, and whether or not she was consequently
treated by a doctor, sheds no light on her fear of being forced to marry
against her will."
[26]
The letter is not credible either; it cannot [translation] "as
its first objective, attempt to contradict the RPD’s findings."
[27]
Although the RAD also ruled on the
inadmissibility of the applicant’s sister’s letter, it is not necessary to
present the reasons here, since this aspect of the decision was not contested
by the applicant.
B.
A hearing before the RAD
[28]
The applicant requested a hearing before the
RAD, but since the criteria set out in subsection 110(6) of the IRPA were
not satisfied, the RAD rejected this request and made its decision based on the
RPD’s record.
C.
Analysis of the merits of the appeal
[29]
The RAD held that, on the whole, the RPD had not
erred in its determination regarding the applicant’s subjective fear and her
credibility.
[30]
Regarding subjective fear, the RAD noted that [translation] "remaining
longer than necessary in a country where one fears persecution is a behaviour
that is indicative of an absence of subjective fear." The RPD was
therefore justified in ruling as it did, even in light of the applicant’s
explanations. The RPD was well-founded in not believing that the applicant’s
delay in leaving Senegal was due to financial troubles, given the work
certificates and pay stubs in the RPD’s file.
[31]
Regarding the fact that the applicant’s sister
did not offer to corroborate the main allegations in the refugee claim, the RAD
is of the opinion that the RPD did not err in determining that this negatively
affects the applicant’s credibility. Even if the applicant’s sister was unable
to attend the hearing, there was nothing preventing her from issuing a written
testimony in the form of an affidavit, either prior to the hearing, during the
hearing, or within the seven days following the hearing before the RPD had
rendered its decision.
[32]
Regarding the work certificates and emails
submitted into evidence by the applicant, the RAD shared the RPD’s opinion that
these should be granted very little probative value. The work certificates [translation] "contain
no information regarding the appellant’s fear of being forced to marry"
and [translation] "there is no evidence that these emails are in fact from
a sister of [the applicant]."
[33]
The RAD therefore upheld the RPD’s decision that
the applicant’s testimony is not credible. It also found, after analyzing the
documentary evidence, that the applicant would have access to state protection
if she were to return to her country. It therefore denied the appeal.
V.
Issues and standard of review
[34]
The applicant raises a number of concerns, of
which, in my opinion, two are determinative in this case:
A.
Did the RAD err in determining that the
applicant would have access to state protection in Senegal?
B.
Did the RAD err in its analysis of the applicant’s
credibility?
[35]
The standard of review applicable to these two
matters is the standard of reasonableness (Alyafi v. Canada (Citizenship and
Immigration), 2014 FC 952 at paragraph 4).
VI.
Analysis
A.
Did the RAD err in determining that the
applicant would have access to state protection in Senegal?
[36]
The applicant argues that the RAD erred in its
analysis of state protection. The RAD considered only a portion of an official
report by the Immigration and Refugee Board of Canada and did not consider the
documentary evidence contradicting its conclusion that the applicant would be
protected in Senegal. The applicant argues that this infringes on her right to
a decision based on the body of evidence and documentation available to the RAD
and that, therefore, the decision is unreasonable.
[37]
The RAD also allegedly erred in stating that the
laws protecting women in Senegal are generally respected. The applicant points
out that the RAD should have applied the criterion of adequate operational
level protection, as was applied in the case of Beri v. Canada (Citizenship
and Immigration), 2013 FC 854 at paragraphs 35–37, which would not
exist in Senegal. This conclusion, the applicant tells us, is supported by the
statement made by the United Nations Committee Against Torture, which is
"deeply concerned about the persistence" of forced marriages in
Senegal.
[38]
In addition, the RAD needed to consider the
applicant’s individual situation in assessing this matter (Troya Jimenez v.
Canada (Citizenship and Immigration), 2010 FC 727 at paragraph 4; Gonzalez
de Rodriguez v. Canada (Citizenship and Immigration), 2013 FC 486 at
paragraph 29). The RAD’s failure to assess the applicant’s specific
circumstances, as well as her personal and family circumstances, renders its
decision in this regard unreasonable.
[39]
With respect, there is nothing to support the
assumption that the RAD did not evaluate all of the evidence before it. The RAD
noted that the phenomenon of arranged marriage exists in Senegal, but that a
law prohibiting this practice also exists, as do a number of organizations that
aim to protect women’s rights. The RAD also noted that the laws protecting
women are generally applied in urban areas.
[40]
Absent a complete breakdown of state apparatus,
states are presumed to be capable of protecting their citizens (Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[41]
This Court has affirmed on several occasions
that a refugee claimant must take all reasonable measures to allow the state an
actual chance to protect him or her (Ward, above; Campos Navarro v.
Canada (Citizenship and Immigration), 2008 FC 358 at paragraph 17; Hernandez
v. Canada (Citizenship and Immigration), 2007 FC 1211 at
paragraph 21). "[A] refugee claimant does not rebut the presumption
of state protection in a functioning democracy by asserting only a ‘subjective
[fear]’." (Sanchez v. Canada (Citizenship and Immigration), 2008 FC
134 at paragraph 9).
[42]
The applicant bore the burden of demonstrating
that she fit the profile of a person who could not request or obtain protection
from the authorities in Senegal. She did not do this. This state protection
does not have to be perfect; it must be adequate (Gomez Florez v. Canada
(Citizenship and Immigration), 2016 FC 659 at paragraph 41).
[43]
In my opinion, it was reasonable for the RAD to
determine that the applicant could benefit from state protection, if she were
to return to her country.
B.
Did the RAD err in its analysis of the applicant’s
credibility?
[44]
My finding with respect to state protection in
Senegal is sufficient to dispose of this application.
[45]
I would add only that the RAD made a number
of determinations with respect to the lack of credibility in this refugee
claim, which the applicant does not contest, that also allow me to find that
the RAD did not err in analyzing this matter.
[46]
The applicant did not contest the RAD’s decision
to grant little, if any, probative value to the emails she had submitted into
evidence, which had allegedly been sent to her. Nor did she explain why the
sender’s email address was her own email address. Not only was the RAD allowed
to reject this evidence, but it was also allowed to determine that this documentary
evidence had a negative impact on the applicant’s credibility.
[47]
The applicant also failed to explain why her
sister did not offer her written account of the facts corroborating the
applicant’s allegations. She had several opportunities to do so before the RPD
rendered its decision, especially since the RPD had raised this issue at the
hearing.
[48]
The RAD has a great deal of latitude in weighing
an applicant’s credibility, and the reviewing Court must respect certain
parameters with regard to intervention.
[49]
The RAD can cite contradictions, inconsistencies
and omissions in an applicant’s evidence to determine that it is not credible (Linares
Morales v. Canada (Citizenship and Immigration), 2011 FC 1496 at
paragraph 21; Onofre v. Canada (Citizenship and Immigration), 2010
FC 1219 at paragraphs 21–22; Bunema v. Canada (Citizenship and
Immigration), 2007 FC 774 at paragraph 1).
[50]
This Court’s role, within the context of an
application for judicial review, is not to re-assess the evidence that was
submitted before the RPD or the RAD. If this evidence can reasonably support
the conclusions drawn with regard to credibility, then this Court must not
intervene (Ahmed v. Canada (Minister of Citizenship and Immigration),
2003 FCT 470 (CanLII), [2003] FCJ No 629 at paragraph 4 FCTD (QL)).
[51]
Consequently, I am of the opinion that the
RAD’s conclusion, regarding its analysis of the applicant’s credibility, was
also reasonable.
VII.
Conclusion
[52]
For the foregoing reasons, I am of the opinion
that the RAD made no error requiring the Court’s intervention and that the
application for judicial review must be dismissed. The parties raised no
questions of general importance for certification and this matter has not
raised any.
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