2018 FC, 2018 FC 1169

Date: 20181120 Docket: IMM-551-18 Citation: 2018 FC 1169 [UNREVISED CERTIFIED ENGLISH TRANSLATION] Ottawa, Ontario, November 20, 2018 PRESENT: The Honourable Mr. Justice Shore BETWEEN: YASMINA ATEK Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I.

Nature of the matter [ 1 ] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA], of a decision by an officer of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (the Board), dated January 12, 2018, pursuant to subsection 111(1) of the IRPA. In that decision, the RAD confirmed the decision of the Refugee Protection Division (RPD) that the applicant is neither a Convention refugee nor a " “person in need of protection” " within the meaning of

section 97 of the IRPA. II. Facts [ 2 ] The Applicant, a 47-year-old female, is a citizen of Algeria. [ 3 ] The applicant initially came to Canada in 2011, on a visitor’s visa. She states that her father had always been psychologically abusive towards her and that this psychological abuse had been her motivation for travelling to Canada. After living in Canada between 2011 and 2014, the applicant returned to Algeria, where she lived in her father’s home from December 2014 to May 2015.

During this visit, her father allegedly informed her that he had found her a husband and that she would not be returning to Canada. [ 4 ] Despite this, the applicant obtained another visa and returned to Montréal in May 2015, where she met an Algerian man shortly thereafter. The couple reportedly started living together in September 2015, the month when the applicant became pregnant. The applicant returned to Algeria—once again to her father’s home—from November to December 2015, for the purpose of renewing her visa.

She decided not to reveal her pregnancy to her father during her visit to Algeria, knowing that he would take the news that she had conceived a child out of wedlock very badly. She only informed him about her pregnancy after she had returned to Canada. In response, her father allegedly disowned her and threatened to kill her if she returned to Algeria. [ 5 ] The applicant married her child’s father in January 2016 in order to resolve the situation. However, this did not soften her father’s stance. [ 6 ] The couple separated one month before Ms. Atek gave birth to their child, that is, in April 2016.

The applicant allegedly requested the separation because her partner was living in Canada without any legal status and had a criminal record. [ 7 ] The applicant applied for refugee protection in Canada because she fears that she would be persecuted by her family and society if she returned to Algeria. More specifically, she is afraid that her family would follow through on her father’s death threat and that she would be persecuted by society because she is a single mother in her forties. III. RPD decision [ 8 ] The RPD concluded that the applicant was not a Convention refugee or a person in need of protection.

The RPD therefore rejected Ms. Atek’s refugee protection claim because her allegation that she had suffered psychological abuse at the hands of her father throughout her life lacked credibility. The RPD based its negative decision on the applicant’s delay in claiming refugee protection after arriving in Canada, and on the fact that she had twice returned to live with her father, despite his alleged ill-treatment of her. [ 9 ] The applicant filed an appeal from this decision and submitted new evidence in support of her appeal, requesting a hearing before the RAD. IV. RAD decision

[ 10 ] In a decision dated January 12, 2018, the RAD confirmed the decision of the RPD and dismissed the appeal. That decision is the subject of this judicial review. A. New evidence [ 11 ] In accordance with subsection 110(4) of the IRPA , the RAD admitted a letter dated August 24, 2016, into evidence; this letter was written by the applicant’s sister, who also lives in Montréal.

According to the RAD, the letter in question is relevant to the case because it addresses the applicant’s fear of returning to Algeria. [ 12 ] The RAD decided that the document met the requirements of subsection 110(6) of the IRPA because it raises a serious issue with respect to the applicant’s credibility, is central to the decision, and could justify granting or refusing the refugee protection claim. Consequently, the application for a hearing before the RAD was accepted. [ 13 ] At the hearing, the RAD called the applicant’s sister to testify.

The RAD found that the applicant’s sister provided testimony that was [ translation] " “contradictory” " and [TRANSLATION] " “not very credible” " . Consequently, the Board member did not ascribe any probative value to the letter submitted for the purposes of the hearing. The RAD also called the applicant to testify at this hearing. B.

Findings of the RAD [ 14 ] After considering all of the evidence, including the recording of the hearing before the RPD, the testimony of the applicant’s sister and the applicant’s testimony before the RAD, the RAD concluded that the RPD did not provide sufficient grounds for its negative decision concerning the applicant’s credibility. The RAD was of the opinion that, in order to analyze the applicant’s prospective fear, the RPD should also have considered the fact that the applicant had conceived a child out of wedlock.

However, even though the RAD found the RPD’s analysis to be [ translation] " “deficient” " , the Board member did not find this error to have been fatal to the final decision. [ 15 ] In the applicant’s file, the RAD noted some inconsistencies affecting her credibility, including the following: (

i) The applicant met a man and became pregnant with his child. She then allegedly asked this man to marry her due to her strict religion. The couple married in January 2016. However, the applicant already wanted a separation just a few months afterwards.

The RAD did not find the applicant’s claim that she wanted to end her relationship with her husband, one month before giving birth to their child, to be credible, since she was the one who had insisted that they get married because she was pregnant; (ii) Following the contradictory testimony of the applicant’s sister, the RAD was not satisfied that the applicant and her husband were in fact separated. Moreover, the child’s birth registration document indicates that he was living at the same address as the applicant”.

However, that document was completed on May 19, 2016, one month after her husband had left the family home, according to the applicant; (iii) The applicant alleges that she has reason to be afraid because she conceived a child out of wedlock. However, in the opinion of the RAD, the applicant was not at risk under

section 96 and subsection 97(1) of the IRPA because she is still married and not separated. Moreover, she had voluntarily returned to Algeria to live with her father while she was pregnant. [ 16 ] For these reasons, the RAD confirmed the decision of the RPD and dismissed the appeal. V.

Issue [ 17 ] The Court rephrases the applicant’s questions as follows: Was the decision rendered by the RAD reasonable? [ 18 ] The standard of review applicable to RAD decisions in an appeal from a decision of the RPD is reasonableness ( Dunsmuir v New- Brunswick , 2008 SCC 9 at para 47 ; Canada (Citizenship and Immigration) v Huruglica , 2016 FCA 93 at paras 2 and 35 ; Singh v Canada (Citizenship and Immigration) , 2017 FC 719 at para 9 ). VI. Relevant provisions [ 19 ] The following provisions of the IRPA are relevant: " Convention refugee " " Définition de « réfugié »

" " 96 " " A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, " " 96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : " " (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or " "

a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; "

"(

b) not having a country of nationality, isoutside the country of their former habitualresidence and is unable or, by reason of thatfear, unwilling to return to that country. " "

b) soit, si elle n’a pas de nationalité et setrouve hors du pays dans lequel elle avait sarésidence habituelle, ne peut ni, du fait decette crainte, ne veut y retourner. ""Person in need of protection " "Personne à protéger ""97""

(1) A person in need of protection is aperson in Canada whose removal to theircountry or countries of nationality or, if theydo not have a country of nationality, theircountry of former habitual residence, wouldsubject them personally " "97

(1) A qualité de personne à protéger lapersonne qui se trouve au Canada et seraitpersonnellement, par son renvoi vers toutpays dont elle a la nationalité ou, si elle n’apas de nationalité, dans lequel elle avait sarésidence habituelle, exposée : ""(

a) to a danger, believed on substantialgrounds to exist, of torture within themeaning of

Article 1 of the ConventionAgainst Torture; or " "

a) soit au risque, s’il y a des motifs sérieuxde le croire, d’être soumise à la torture ausens de l’article premier de la Conventioncontre la torture; ""(

b) to a risk to their life or to a risk of crueland unusual treatment or punishment if " "

b) soit à une menace à sa vie ou au risque detraitements ou peines cruels et inusités dansle cas suivant : ""(

i) the person is unable or, because of thatrisk, unwilling to avail themself of theprotection of that country, " "(

i) elle ne peut ou, de ce fait, ne veut seréclamer de la protection de ce pays, " "(ii) the risk would be faced by the person inevery part of that country and is not facedgenerally by other individuals in or from thatcountry, " "(ii) elle y est exposée en tout lieu de ce paysalors que d’autres personnes originaires de cepays ou qui s’y trouvent ne le sontgénéralement pas, ""(iii) the risk is not inherent or incidental tolawful sanctions, unless imposed in disregardof accepted international standards, and " "(iii) la menace ou le risque ne résulte pas desanctions légitimes — sauf celles infligées aumépris des normes internationales — etinhérents à celles-ci ou occasionnés par elles,""(iv) the risk is not caused by the inability ofthat country to provide adequate health ormedical care.

" "(iv) la menace ou le risque ne résulte pas del’incapacité du pays de fournir des soinsmédicaux ou de santé adéquats. ""Decision" "Décision ""111"".

(1) After considering the appeal, theRefugee Appeal Division shall make one ofthe following decisions: " "(

a) confirm the determination of the RefugeeProtection Division; " "(

b) set aside the determination and substitutea determination that, in its opinion, shouldhave been made; or " "(

c) refer the matter to the Refugee ProtectionDivision for re-determination, giving thedirections to the Refugee Protection Divisionthat it considers appropriate. " "111.

(1) La

Section d’appel des réfugiésconfirme la décision attaquée, casse ladécision et y substitue la décision qui auraitdû être rendue ou renvoie, conformément àses instructions, l’affaire à la

Section de laprotection des réfugiés. " VII. Analysis [20] The overriding issue in this case is credibility. The applicant claims that she would be persecuted by her family and by society ingeneral if she returns to Algeria because she lived with her husband and became pregnant before they married. The onus was on theapplicant to demonstrate the truthfulness of these allegations. A. Family persecution [21] According to the applicant, her sister’s testimony indicating that her father had made threats against her should benefit from thepresumption of truthfulness of witnesses.

However, the Board came to the opposite conclusion because it had noted a number of reasonsto doubt the truthfulness of the testimony (Maldonado v Canada (Minister of Employment and Immigration), (FCA),[1980] 2 FC 302 at para 5). Doubts may arise when the evidence does not support the applicant’s claims or when the applicant providescontradictory or implausible testimony. [22] The applicant is of the opinion that since doubts were raised by testimony concerning peripheral aspects of the claim for refugeeprotection, the credibility of the witness should not be tainted on that basis.

Here, the applicant is alluding to the contradictionsconcerning the timing of the couple’s alleged separation, a fact which partly served as the basis for the RAD’s finding that the applicantand the father of her child were still a couple. Since the applicant is referencing her situation as a single mother to demonstrate thepersecution that she could potentially suffer if she returned to Algeria, the Court rejects the idea that it is a peripheral aspect of theapplication. The RAD could therefore conclude that the applicant’s sister lacked credibility, based on her testimony on that subject.

TheRAD’s determination on this point is transparent, logical and well supported. The Court will therefore accept the RAD’S finding in this

regard. [23] Consequently, evidence of the father’s threats was based solely on the applicant’s statements. However, the RAD refused to believethat the applicant had been mistreated by her father, for three reasons. First, if the applicant had in fact been mistreated by her father inthe past, it seemed implausible to the RAD that she would go back to living in her father’s home when she returned to Algeria, includingwhen she was pregnant.

Second, the applicant waited a number of years after her first visit to Canada to claim refugee protection.According to the RAD, this was also inconsistent with the alleged abuse reported by the applicant.

Lastly, the RAD was of the view thatsince the applicant is now married, her father should no longer feel that she has brought shame upon her family. [24] Since this matter involves a determination of the applicant’s credibility, the Court will refrain from intervening unless the decisionrendered by the RAD is "“perverse, capricious or based on erroneous findings of facts”" (Siad v Canada (Secretary of State), (FCA), [1997] 1 FC 608 (FCA) at para 24). In Rahal v Canada (Citizenship and Immigration), 2012 FC 319 [Rahal],Justice Mary J. L. Gleason reviewed the case law on the

definitions of the words "“perverse”" and "“capricious”". She noted that adecision will be considered to be perverse if the findings are contrary to the evidence, and "“that inferences based on conjecture arecapricious”".

However, the Court must distinguish between conjecture and inference, as the former is based on a mere guess, while thelatter is a deduction from the evidence (Rahal, above, at para 37). [25] Of the three elements cited by the RAD in determining that the father’s threats had been made up, the first two were based onevidence and fall within the scope of possible conclusions that may be drawn by a court. However, with respect to the third element,there is no basis for the reasons provided by the RAD.

The RAD should make a plausibility finding "“only in the clearest of cases, i.e., ifthe facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates thatthe events could not have happened in the manner asserted by the claimant”" (Valtchev v Canada (Ministry of Citizenship andImmigration), 2001 FCT 776 at para 7 [Valtchev]). Moreover, the RAD should avoid falling into the trap of applying Canadian standardsto an Algerian situation (Valtchev, above, at para 7).

Despite the deference that this Court owes the RAD with respect to issues ofcredibility, the RAD must nevertheless base its decision on logic that relies on facts, which it failed to do on this point. Consequently, theCourt finds that the RAD merely resorted to conjecture regarding the reaction of the applicant’s family, thereby rendering its finding inthis regard perverse. Nonetheless, this is not fatal to the outcome of this case. B.

Persecution by society in general [26] The applicant also presented evidence to the effect that a single mother in Algeria would suffer persecution from society in general.However, the RAD found that the applicant was not separated from her husband.

It based this finding on several clues: 1)The RAD notedcontradictions between the appellant’s testimony and the testimony provided by her sister regarding the timing of the separation;2) based on the context in which the applicant had insisted on getting married in order to resolve her situation, it seemed implausible thatthe applicant would then initiate a separation one month before giving birth; 3) the applicant stated that she had decided to separate fromher husband after a minor quarrel, which seemed implausible in light of the reasons that had prompted them to get married in the firstplace; 4) the applicant’s husband gave the same address as she did on their son’s birth certificate, when the child was born after hisparents’ alleged separation; and 5) divorce proceedings had not been initiated.

Therefore, according to the RAD, the applicant was notseparated, and its assessment should instead be based on the situation of a married woman in Algeria. The RAD ultimately found that theapplicant would not suffer persecution in Algeria if she did not live in the same city as her family, the main agent of her persecution. Thisfinding does not seem unreasonable. [27] This Court will intervene only if the decision rendered by the RAD falls outside the scope of possible outcomes in this case, basedon the evidence on record.

In the case at hand, the RAD conducted an in-depth analysis of the file, provided the applicant with anopportunity to submit additional evidence, held a hearing, and concluded that the applicant did not discharge her burden of proving thatshe was in fact separated and would therefore be returning to Algeria as a single mother, where she would be persecuted by society. Thisconclusion falls within the scope of possible outcomes in this case. VIII. Conclusion [28] For the reasons given above, this application for judicial review is dismissed.

JUDGMENT in IMM-551-18 THIS COURT’S JUDGMENT is that the application for judicial review be dismissed. There is no question of importance to be certified.The style of cause is hereby amended to reflect the correct respondent, the Minister of Citizenship and Immigration. “Michel M.J. Shore” Judge Certified true translation This 20th day of December, 2018. Michael Palles, Translator FEDERAL COURT

SOLICITORS OF RECORD FILE: IMM-551-18 STYLE OF CAUSE: YASMINA ATEK v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, QuEbec DATE OF HEARING: NOVEMBER 13, 2018 JUDGMENT AND REASONS: SHORE j. DATED: november 20, 2018 APPEARANCES : Alfredo Garcia FOR THE APPLICANT Éloïse Eysseric FOR THE RESPONDENT SOLICITORS OF RECORD : Avocats Semperlex, LLP Montréal, Quebec FOR THE APPLICANT Attorney General of Canada Montréal, Quebec for the respondent