MB9-09865

RAD File No. / No de dossier de la SAR : MB9-09865 MB9-09866 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 4, 2020 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the persons who are the subject of the appeal Me Cristian Roa-Riveros Conseil des personnes en cause Designated representative

XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX (appellant) and her minor daughter XXXX XXXX XXXX XXXX (minor appellant), citizens of Haiti, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] The appellant states that she fears being killed by her spouse's political opponents and, as a woman who is alone, being exposed to rape. [3] The RPD rejected the appellants' refugee protection claim on the ground that they are excluded under Article 1E of the Convention pursuant to section 98 of the Immigration and Refugee Protection Act (IRPA). [4] The appellants argue that the RPD erred in excluding them. The RPD erred in concluding that they left Brazil voluntarily, in finding the appellant not credible regarding her fear in Haiti and not considering her a vulnerable woman, and in analyzing Canada's international obligations under paragraph 97(1)(b) of the IRPA, rather than section 96 of the IRPA. [5] The Minister of Public Safety Canada (the Minister) intervened before the RPD. He did not intervene in the appeal. According to the Minister, the appellants were excluded under Article 1E of the Convention. They had prima facie permanent resident status in Brazil and the onus was on them to establish that they no longer had it, which they failed to do. [6] The Refugee Appeal Division (RAD) is of the opinion that the determinative issue is the appellants' exclusion under Article 1E of the Convention. [7] The RAD confirms the RPD determination and dismisses the appeal.

BACKGROUND [8] The appellant's spouse and two sisters were allegedly members of the Assembly of Progressive National Democrats (RDNP) party, which opposed the Tèt Kale Haitian Party (PHTK). During a political rally on XXXX XXXX XXXX 2011, people wearing PHTK tops allegedly fired on the crowd. The appellant's spouse was apparently injured and the two sisters killed. [9] Criminals belonging to Lame Kanibal had apparently recognized the appellant's spouse. In XXXX 2011, they went to the home of the appellant's parents-in-law, where she lived with her spouse, to try to kill him. They allegedly set fire to the house. [10] On XXXX XXXX, 2011, the appellant's spouse allegedly left Haiti for Brazil. The appellants apparently joined him there on XXXX XXXX, 2012. They left Brazil together on XXXX XXXX, 2016. They arrived in the United States on XXXX XXXX XXXX 2016. The appellant's spouse allegedly entered Canada on XXXX XXXX XXXX 2017, and the appellants apparently followed him on XXXX XXXX XXXX 2017. Since they arrived in Canada on different dates, their refugee protection claims were processed separately. [11] The oral hearing before the RPD took place on April 8, 2019. [12] The appellant's spouse's refugee protection claim record was added to that of the appellants. The RPD and RAD concluded that he was excluded under Article 1E of the Convention. The Federal Court dismissed the application for judicial review. The appellant's spouse was a permanent resident of Brazil and had left the country less than two years earlier. He had failed to demonstrate a serious possibility of persecution or of being personally subjected to a risk in Brazil.

ANALYSIS [13] The RAD conducted an independent analysis of all the evidence, including listening to the recording of the hearing before the RPD, took into consideration the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (the Guidelines),1 and applied the standard of correctness.2 The appellants are referred to in exclusion clause 1E [14] In Zeng,3 the Federal Court set out the factors to consider in applying exclusion clause 1E: Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. [15] The RAD did not identify errors in the RPD's unchallenged conclusions that the appellants had permanent resident status in Brazil, had

left Brazil more than two years before the oral hearing and had lost their status. [16] Given these conclusions, the RAD must weigh the various factors in Zeng. The appellants left Brazil voluntarily [17] In their memorandum, the appellants submit that racism and discrimination were not enough to justify persecution, but were enough to conclude that they had voluntarily left the country. They state that according to the documentary evidence, people of colour, including Haitians, are targeted and are victims of violence at the hands of government agents and the population in general because of their race. They also argue that state protection would be insufficient if the appellants needed it. [18] The RPD concluded that the appellants' departure was voluntary. The appellant had apparently been dismissed from a XXXX XXXX job she had held for two years. She testified that she received no reason for the dismissal. She believes that it was because of discrimination against Haitians. She has no other fear in Brazil. The fear of not working is, in her opinion, sufficient fear for leaving the country. While mindful of the discrimination against Haitians in Brazil, the RPD considered that the appellant's dismissal was not persecution. [19] Like the RPD, the RAD is of the opinion that the appellants' departure was voluntary. [20] In light of the evidence presented by the appellants, the

Federal Court's comments in Debel4 apply here: [translation] [29] With regard to the first piece of evidence, I believe it is reasonable to conclude that it is insufficient to establish their fear. The evidence of discrimination raised by the claimants is generalized or demographic in nature. It shows that Haitians and Afro-Brazilians are often victims of discrimination in Brazil. Although racial discrimination is regrettable, this evidence does not demonstrate that the claimants will be personally exposed to a sustained or systematic violation of these rights. In other words, this evidence does not establish the existence of consequences of a substantially prejudicial nature for the claimants (Celestin v Canada (Citizenship and Immigration), 2020 FC 97 at para. 62 [Celestin]; Noel v. Canada (Citizenship and Immigration), 2018 FC 1062 at paras. 18-21; Simolia v. Canada (Citizenship and Immigration), 2019 FC 1336 at paras. 26-27). [30] As for the second piece of evidence, I believe that it is reasonable to conclude that the claimants did not produce any persuasive evidence of a lack of protection from the Brazilian government. There is no evidence establishing that the claimants are targeted or that they were insufficiently protected by the Brazilian government. [21] The appellant cannot confirm that discrimination is behind her dismissal. Even if this fact were demonstrated,

her departure would not be involuntary. The RAD appreciates the fact that the appellant testified to being unable to find a job, but that is not a sustained or systematic violation of her rights. [22] According to the RAD, the appellants failed to produce persuasive evidence of the lack of protection from the Brazilian government. [23] The appellants chose to leave Brazil of their own accord. Nothing forced them to leave this country, since they had permanent resident status that protected them against deportation to Haiti. [24] The RAD considers the RPD conclusion that the appellants left Brazil voluntarily to be correct. [25] This conclusion weighs in favour of the appellants' exclusion under Article 1E of the Convention. The appellants could return to Brazil [26] The appellant acknowledged that she took no steps to regain her status. The RPD considered this to be unreasonable because it was inconsistent with the behaviour expected from someone fearing for her life. Despite this conclusion, it was of the opinion that the evidence did not establish, on a balance of probabilities, the possibility of a return to Brazil because Brazilian law is not very clear on the consequences of an irregular departure from the country. [27] The RAD did not identify any errors in this unchallenged RPD conclusion. [28] This conclusion weighs in favour of the appellants' exclusion under Article

1E of the Convention. The appellants are not subjected to risk in Haiti Credibility [29] The appellants contest the RPD finding that the appellant is not credible. The RAD is of the same opinion as the RPD. [30] The appellants reiterated the principles set out by the Federal Court of Appeal in Maldonado5 that when a person swears that certain facts are true, this creates a presumption that they are true, unless there are valid reasons to doubt them. The panel should not merely look for contradictions or elements that are not credible. The RAD does not consider the RPD to have done that. The RPD did not draw a negative conclusion from the fact that the appellant cannot name the agent of persecution [31] The appellants state that the appellant's inability to provide the exact first and last names of the agent of persecution should not undermine her credibility. [32] The RPD does not make such a judgment in paragraph 25 of its reasons. The RAD notes that it refers only to the political opinion imputed to the appellant. The appellant's description of the threats received and the behaviour that followed undermines her credibility [33] According to the appellants, the appellant did not provide confusing or vague answers, but, rather, the RPD misunderstood her answers. The appellant stated that her spouse had received threats that were not serious. When they became serious and he

became the victim of attempted murder, he decided to leave Haiti. [34] The RPD drew a negative inference from the fact that, when asked three times to explain the threats and persecution, the appellant did not mention the facts contained in her Basis of Claim Form (BOC Form), including her spouse's attempted murder. The RPD did not accept the appellant's explanation that she was waiting for it to ask her about these events. [35] The RPD asked the appellant to explain the threats that she had received. The way its questions were formulated could have led the appellant to talk about her cousin's rape, which she witnessed, rather than the threats to which her spouse and her family were allegedly subjected. [36] That said, after listening to the recording of the hearing before the RPD, the RAD notes that the appellant's answers were vague, contradictory and inconsistent. Like the RPD, the RAD finds her credibility undermined. [37] The appellant testified that she had left Haiti because of threats that, while not major, were enough to frighten her and her spouse. She then said that the threats were not serious compared to her spouse's attempted murder.6 [38] The appellant stated that after the XXXX 2011 fire at the home of her parents-in-law in XXXX, she hid with her spouse in the countryside until XXXX 2011.7 [39] According to his IMM 5669 form, the appellant's spouse worked as a

XXXX for XXXX XXXX XXXX XXXX XXXX XXXX from XXXX 2009 to XXXX 2011.8 Asked about this by the RPD, the appellant testified that she did not know why her spouse had said that he worked when they were living in hiding. Moreover, her spouse had studied XXXX, but had not worked at a XXXX XXXX.9 Later during the hearing, she said that she did not remember her spouse working, but that she could be wrong because she did not always know what he did when he went out.10 [40] The appellant also mentioned11 that between the fire and her spouse's departure in XXXX 2011, there had been no threats. The appellant testified that she assumed this was because the criminals did not see them and did not have access to them. Her spouse allegedly left Haiti because he could no longer live in hiding. [41] Then, later during the hearing, the appellant said that they returned to XXXX after hiding in the countryside, that there were, of course, threats and that this is where steps were taken to leave the country.12 Her spouse received death threats, some criminals knew him and sometimes crossed paths with him, they came to their neighbourhood and fired shots, they were heavily armed and they shot at no particular target to let them know that they were there and were watching them.13 [42] The RAD draws a negative inference as to the appellant's credibility regarding the contradictions between her testimony

and her spouse's statement in his IMM 5669 form, her contradictions in her testimony as to where they lived between XXXXand XXXX 2011 and the threats received during this period. The contradiction between the appellant's Basis of Claim Form and her testimony regarding the circumstances of the fire at the home of her parents-in-law undermines her credibility [43] The appellants submit that neither the appellant's nor her spouse's BOC Form mentions his absence during the XXXX 2011 fire. The contradiction is the result of a deduction made by the RPD. [44] The appellant testified14 that she does not remember the exact date of the fire. It apparently occurred in XXXX 2011. Her spouse, child and parents-in-law were home. They allegedly heard noises and realized that a fire was starting. They apparently gathered up what they could, ran out and headed to a neighbour's home. The following day, they apparently made the decision to leave and hide in the countryside. No complaint was apparently filed with the police because they were afraid. [45] The RPD asked the appellant why her BOC Form did not mention that her spouse was home. She answered that perhaps she had forgotten to write it. The RPD found this explanation unreasonable given that she was home at the time of the events. [46] The RAD is of the opinion that, based on the appellant's and her spouse's BOC Forms, no deduction was

required to conclude that he was not home when the criminals came there: Appellant's BOC Form:15 [translation] These criminals were part of Lame Kanibal. They came to my home to try to kill our family, but, through the grace of God, my parents-in-law, my child and I managed to escape. I could not return home because they had set my house on fire. Appellant's spouse's BOC Form:16 [translation] These criminals were part of Lame Kanibal. They came to my house to kill the rest of my family, but, by the grace of God, my mother, my father, my spouse and my child fled. I was forced to stay away from home because they had set my house on fire. I walked down paths but did not go to the hospital so that I could escape. [47] The RAD is of the same opinion as the RPD. There is a contradiction between the BOC Forms and the appellant's testimony. Both BOC Forms are consistent as to the absence of the appellant's spouse when the criminals came. According to the RAD, the appellant's explanation that she had forgotten to mention in her BOC Form that her spouse was there does not hold up. [48] The appellant's credibility is undermined by this contradiction, which relates to an important fact. This leads the RAD to doubt that the incident in XXXX 2011 occurred. The lack of a police complaint after being beaten does not undermine the appellant's credibility [49] Criminals allegedly attacked a bus

that the appellant and her female cousin were riding. The appellant was allegedly beaten, and her cousin raped. The appellants produced a police certificate.17 It refers to a complaint filed on XXXX XXXX, 2012, regarding a rape that apparently took place on XXXX XXXX XXXX 2012. It makes no mention of the attack on the appellant. [50] The appellants are of the opinion that the RPD erred in finding that the appellant's credibility was undermined with regard to the description of this incident. It was not essential to the refugee protection claim. The purpose of the complaint was to report the rape of which the appellant's cousin had been a victim. The other passengers had experienced the same thing as the appellant. It was therefore criminality in general. The appellant was not personally targeted. The RPD is mistaken in stating that this incident is the basis for the refugee protection claim. [51] The RPD considered that this incident was the basis for the appellant's refugee protection claim. It allegedly expected the appellant to be able to describe the incident in detail, state whether or not it was persecution and provide reasons as to why she had not made a complaint. The RPD did not accept the appellant's explanations that she had not filed a complaint because that is how it was and she did not feel sorry for herself. It did not give probative value to the police

complaint. [52] The RAD is not of the same opinion as the RPD. This incident was not the basis for the appellants' refugee protection claim. The imputed political opinion was. Moreover, it is not up to the appellant to determine whether or not the incident was persecution. Regardless of the appellant's response, the RPD could not draw an inference from it. Unlike the RPD, the RAD is satisfied with the appellant's explanations. It is possible that she did not want to feel sorry for herself because what happened to her was less serious than what happened to her cousin, who had been raped. The RAD does not find the appellant's credibility undermined. The omission by the appellant's spouse to mention that he was a member of a political party [53] According to the appellants, the RPD erred in ascribing to them a statement made by the appellant's spouse on his IMM 5669 form. He apparently stated that he was neither a member of or affiliated with a political party.18 According to the appellants, this is a common error in Haitian records, and the RPD normally accepts the explanations. Here, the RPD decided to undermine the appellant's credibility, even though this was not her form. [54] The RPD did not accept the appellant's explanation that there was a mistake on the form. The RPD gave no probative value to the appellant's spouse's RDNP membership card. This item contained little

information on the latter. No identity document had been produced for the appellant's spouse. [55] The RAD agrees that the statement on form IMM 5669 is not the appellant's, but this form is part of the evidence on the record. The appellant's spouse's political involvement is central to the refugee protection claim. The RAD would have expected him to mention this upon his arrival in Canada. [56] Like the RPD, the RAD concludes that the addition of contradictions and inconsistencies without satisfying explanations undermines the appellant's credibility and her allegations as to a risk in Haiti. Appellants' lack of fear of gender-related persecution [57] The appellant stated that she feared rape, which is a known problem in Haiti. The appellants submit that the RPD should have analyzed this allegation under section 96 of the IRPA. [58] The appellant alleged that she had never worked in Haiti. She has no family members with whom she could stay. Her spouse is in Canada, and she has no male support. In addition to the minor appellant, she has a Canadian child whom she would be unable to leave in Canada and who would not receive the medical care he needs in Haiti. The RPD lacked understanding and sensitivity in concluding that the appellant was not a vulnerable Haitian woman. [59] The RPD acknowledged that violence in Haiti was widespread. The RPD concluded that there is no serious

possibility of persecution if the appellants were to return to Haiti due to their membership in the particular social group of women. The appellant has family in Haiti: parents, two half-sisters and two half-brothers, an aunt, a female cousin and a male cousin. She would therefore have male support, even in her spouse's absence. She could stay with her family or in-laws. Although work is difficult to access, there is no indication that she could not find a job, as she had worked as a XXXX in Brazil, even though she had never worked in Haiti. [60] The RAD draws the same conclusion as the RPD. [61] The Guidelines and case law19 have established that women can be considered a particular social group within the meaning of the Convention. However, simply being a member of the particular social group of women is not sufficient to result in a finding of a serious possibility of persecution on this ground.20 [62] The documentary evidence shows that the situation in Haiti is particularly difficult for women who are homeless, who live in camps for people displaced by the earthquake or who live in extremely poor neighbourhoods near urban centres such as Port-au-Prince.21 [63] In Josile,22 the Federal Court notes the importance of taking into account each female claimants' personal situation, the conditions in which they live or would live, and their family situation. [64] After listening

to the recording of the hearing, the RAD notes that the appellant's situation would not be easy if she were to return to Haiti. She also reiterated that she would rather die than return to live in Haiti. The RAD is mindful of the appellant's testimony. [65] According to her testimony,23 she would not be able to live with her half-brothers and half-sisters because she has no contact with them and because they are younger than her and live with their mother. Nor would she be able to live with her mother because she is in a home with nieces and nephews and has no money. The appellant sends her money to help her. She would not be able to move in with her father because she is the one helping him; nor could she live with her aunt because she herself lives with other people. The appellant states that she is alone. [66] The RAD acknowledges that the appellant's family members appear to be lacking financial means. However, she does have family. [67] According to the evidence produced by the appellants, the appellant's Canadian child has XXXX XXXX. The fact that this child must accompany her and cannot receive appropriate care in Haiti if the appellant were to return to Haiti is hypothetical. The RAD therefore does not take into account the Canadian child's situation. [68] The appellant believes that she will be unable to work in Haiti because the situation is different than in Brazil.

Haiti is a very poor country. It is indeed possible that the appellant will have a hard time finding a job, but the evidence does not show that she will be unable to find one. [69] The appellants had the burden of establishing that they face a risk of violence because they belong to the particular group of women. The RAD is of the opinion that they did not establish a serious possibility of persecution based on their gender if they were to return to Haiti. [70] Contrary to the appellants' assertion, the RPD did indeed analyze the appellants' situation under section 96 of the IRPA, concluding, based on the documentary evidence and the appellants' personal situation, that there was no serious possibility of persecution due to their membership in the gender-related group. [71] The RAD is of the opinion that it was correct for the RPD to conclude that the appellants failed to demonstrate a serious possibility of persecution within the meaning of section 96 of the IRPA or a risk of harm within the meaning of subsection 97(1) of the IRPA if they were to return to Haiti. [72] This conclusion weighs in favour of the appellants' exclusion under Article 1E of the Convention. Compliance with Canada's international obligations [73] The appellants submit that the RPD erred in concluding that Canada's obligations were met under paragraph 97(1)(b) of the IRPA, whereas the refugee protection

claim was based on section 96 of the IRPA. [74] In paragraph 43 of its reasons, the RPD states that Canada's international obligations are met after having concluded [translation] "...[that] there is no well-founded fear of persecution or risk as set out in subsection 97(1) of the IRPA for the refugee protection claimants either in Brazil or in Haiti...." [75] Contrary to the appellants' claims, the RPD considered section 96 of the IRPA in its analysis. [76] This conclusion weighs in favour of the appellants' exclusion under Article 1E of the Convention. [77] The RAD weighed all the factors in Zeng. They weigh in favour of the appellants' exclusion under Article 1E of the Convention. [78] To complete its analysis, the RAD must examine the situation the appellants would face should they return to Brazil. The appellants failed to establish reasonable fear of persecution or current or prospective risk in Brazil [79] In their memorandum, the appellants acknowledged that the racism and discrimination experienced were not enough to justify persecution. [80] The RPD reached such a conclusion. [81] The RAD did not identify any errors in this unchallenged RPD conclusion. Moreover, the RAD notes that the appellant simply specified "Haiti" in response to question 3 of her BOC Form asking to "[l]ist the country or countries where you believe you are at risk of serious harm." [82] The RAD

is of the opinion that the RPD was correct to conclude that, in Brazil, the appellants do not face a serious possibility of persecution within the meaning of section 96 of the IRPA or a risk of harm within the meaning of subsection 97(1) of the IRPA if they were to return to Haiti. [83] The RAD is of the opinion that the RPD conclusion that the appellants are excluded under Article 1E of the Convention is correct. [84] The RAD is of the opinion that the RPD determination is correct.

CONCLUSION [85] The RAD dismisses the appeal and confirms the RPD determination that the appellants are excluded under Article 1E of the Convention. Isabelle Parizeau Me Isabelle Parizeau March 4, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Board of Canada. Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Ottawa. Effective date: November 13, 1996. 2 Canada v. Huruglica, 2016 FCA 93. 3 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. 4 Debel v. Canada (Immigration, Refugees and Citizenship), 2020 FC 156. 5 Maldonado v. Canada (Minister of Employment and Immigration), (1980) 2 FC 302 (C.A.). 6 Audio recording of the Refugee Protection Division (RPD) hearing, see approximately 0:58:36 to 1:01:06. 7 Ibid., see approximately 1:33:46 to 1:34:13. 8 RPD record, at p. 86. 9 Audio recording of the RPD hearing, see approximately 1:31:16 to 1:32:47. 10 Ibid., see approximately 2:20:20 to 2:22:31. 11 Ibid., see approximately 1:27:52 to 1:30:43. 12 Ibid., see approximately 1:40:14 to 1:45:18. 13 Ibid., see approximately 1:45:31 to 1:47:32. 14 Ibid., see approximately 1:18:32 to 1:20:34. 15 RPD record, at p. 31. 16 Ibid., at p. 21. 17 Ibid., at p. 119. 18 Ibid., at p. 85. 19 Dezameau v. Canada (Immigration and Citizenship), 2010 FC 559, paras. 34-36. 20 Ibid., at para. 29. 21 National Documentation Package (NDP)

on Haiti, September 30, 2019 (June 28, 2019, March 29, 2019), Document 5.12: Haiti: Les violences faites aux femmes [violence against women], Office français de protection des réfugiés et apatrides (OFPRA) [French office for the protection of refugees and stateless persons], January 9, 2017. 22 Josile v. Canada (Citizenship and Immigration), 2011 FC 39. 23 Audio recording of the RPD hearing; see approximately 2:11:25 to 2:15:08. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-09865 MB9-09866 RAD.25.02 (January 2020) Disponible en français 16 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.25.02 (January 2020) Disponible en français