MB8-04846

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 / Dossier de la SAR : MB8-04846 MB8-04847 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision November 28, 2018 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Fanny Cumplido Conseil(s) (de la/des) personne(s) 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 (Principal Appellant) is a citizen of Haiti and XXXX XXXX (Associate Appellant) is a citizen of the United States. The Principal Appellant is the Associate Appellant's mother and also her designated representative in this proceeding. They have appealed a decision of the Refugee Protection Division (RPD), rendered orally on February 18, 2010, rejecting their claims for refugee protection. DETERMINATION [2] I dismiss the appeal for the reasons below. In accordance with paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellants have not established that they are either Convention refugees or persons in need of protection within the meaning of sections 96 and 97 of the IRPA. BACKGROUND [3] The Principal Appellant claims that she fears her uncle XXXX, her mother's brother, who practices voodoo and who was allegedly jealous of the educational level attained by the Principal Appellant and her sister. The Principal Appellant has finished secondary school whereas her sister has a university degree. The Principal Appellant also fears that her uncle will attack her and kill her as he allegedly attacked her in XXXX 2009 before she left Haiti. The Principal Appellant left Haiti for the Dominican Republic on XXXX XXXX, 2010. She then went to Brazil in XXXX 2014, following which she entered the United States in XXXX 2016 and crossed the border into Canada in XXXX 2017. The Associate Appellant was born during the Principal Appellant`s time in the United States. ROLE OF THE RAD [4] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS Sections 96 and 97 analysis re. Principal Appellant RPD's findings [5] The RPD found that the Principal Appellant had failed to establish a serious risk of persecution or that she would be subject to harm under s. 97 of the IRPA either due to her uncle's practice of voodoo or otherwise if she were to return to Haiti. In particular, the RPD found that the Principal Appellant's claim that her uncle would practice voodoo on her due to her educational level was not credible given that she had testified that her sister, who has completed an even higher level of education than her, has not faced any problems with the uncle upon her returns to Haiti. The RPD also found that the Appellant had failed to prove that the deaths of two of her other uncles and certain health problems she had had in XXXX and XXXX 2009 were caused by the voodoo practiced by her uncle XXXX. [6] With respect to a risk of any other kind of harm under s. 97, the RPD found that, even if it were true that the Principal Appellant's uncle beat her in XXXX 2009, the power balance has now changed between the Appellant and her elderly uncle and that the Appellant is now married with her husband who is also living in Haiti. In addition, the RPD relied on the fact that the Principal Appellant's mother still lives in Haiti and there was no evidence of her brother targeting her for having educated her children. [7] Finally, the RPD rejected the argument made by the Appellants' counsel in her submissions that the Appellant would face a serious risk of gender-based persecution if she were to return to Haiti due to the beating she alleged from her uncle in XXXX 2009. The RPD noted that the Appellant made no allegation that she feared returning to Haiti due to her gender but instead alleged that she feared persecution due to her level of education. Principal Appellant's Arguments on Appeal [8] The Principal Appellant argues that the RPD erred in its assessment of her credibility, failed to take into account all of the evidence, and failed to render an intelligible and transparent decision. In the appeal memorandum, the Appellants' counsel essentially repeats the evidence provided by the Principal Appellant in the case and invites the RAD to find that the RPD erred in its assessment of the evidence. In particular, the Principal Appellant notes that she submitted two death certificates for the deaths of her two other uncles. The Principal Appellant also calls attention to a document in the National Documentation Package (NDP) for Haiti which states that the use of witchcraft is most often motivated by family conflicts.3 Analysis and Findings on Appeal [9] Having conducted an independent assessment of all of the evidence, including the audio-recording of the hearing, I find that the RPD did not err in finding that the Principal Appellant has failed to make out a serious risk of persecution or a likelihood of harm under s. 97. Even if the Principal Appellant may have a subjective fear that her uncle will persecute or harm her by practicing voodoo on her or attacking her if she were to return to Haiti, the objective evidence does not establish a serious risk of persecution on a Convention ground or a likelihood of s. 97 harm if the Principal Appellant were to return to Haiti. [10] As noted by the RPD, the Principal Appellant testified that, in her view, the reason her uncle would want to harm her either by practicing voodoo on her or beating her if she were to return to Haiti relates to the level of education that she and her sister have attained. She also believes it was his practice of voodoo that was the cause of the death of her other two uncles. That is her subjective belief. However, there was no credible and trustworthy objective evidence that would support this belief in this case. [11] While the Appellant claimed that her uncle was likely to pose a risk to her life if she returned to Haiti, she herself testified that he had not caused any problems for her sister who returned to Haiti from the Dominican Republic on a regular basis. This was despite the fact that her sister had attained a higher level of education than her. In addition, there was no evidence that the uncle had caused any problems for the Principal Appellant's mother for having educated her two daughters. [12] Therefore, based on the Principal Appellant's own evidence, it is unlikely that her uncle would subject her to harm under s. 97 through voodoo or any other means due to her level of education. Like the RPD, I do not find credible the Principal Appellant's explanation that, even if her uncle did not cause problems for her sister, he would cause problems for her because he did not want her to finish her education. If the Principal Appellant's uncle was jealous of her and her sister's educational level to the point of threatening their lives, one would expect that he would have caused problems for her sister who returned to Haiti regularly and had attained a university education or to the Principal Appellant's mother who remains in Haiti and raised both of her educated daughters. [13] I do not agree with the Principal Appellant that the death certificates she submitted for her uncles assist her in making out a likelihood of s. 97 harm in this case since the death certificates do not list a cause of death. In addition, there is no evidence in this case beyond the Principal Appellant's subjective belief, that the cause of her uncles' deaths was the voodoo practiced by her uncle XXXX. Similarly, there is no evidence that would establish on a balance of probabilities that the Appellant's sickness in XXXX and XXXX 2009 was caused by voodoo practiced on her by her uncle. [14] In terms of the Principal Appellant's uncle attacking her in XXXX 2009, the Principal Appellant testified that her uncle came after her and beat her with his fists until community members intervened. However, she also testified that she had no injuries and she did not have to go to the hospital. In addition, there was no evidence of the Principal Appellant's uncle attacking her other than that one time. There was also no evidence of him having had any contact with the Principal Appellant or having threatened the Principal Appellant in any way in the nine years since that time. In addition, the Appellant is now married and a grown woman who is married and has her own family. For all of these reasons, I agree with the RPD's conclusion that the Principal Appellant failed to make out, on a balance of probabilities, that her uncle would subject her personally to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment if she were to return to Haiti. [15] With respect to the claim made by the Appellants' counsel in her submissions before the RPD that the Principal Appellant faces a serious risk of persecution based on her gender, I agree with the RPD that she has failed to provide evidence that would support such a serious risk. The Principal Appellant did not allege a risk of persecution based on the fact that she is a woman nor did she provide any evidence that her uncle took any actions toward her because of her gender. Her allegations and her evidence all related to her fear that he would harm her due to her level of education. I agree with the RPD that the Principal Appellant's evidence and profile does not establish a serious risk of gender-related persecution. Associate Appellant's claim [16] When the RPD asked the Principal Appellant whether the Associate Appellant, her daughter, feared anything in the United States, she said she did not. Based on this, the RPD found that the evidence did not establish that the Associate Appellant would face a serious risk of persecution or a likelihood of harm under s. 97 if he were to return to the United States. [17] The Appellants did not challenge this finding. [18] I agree with the RPD that the Appellants have failed to make out a serious risk of persecution or a likelihood of harm under s. 97 if the Associate Appellant were to return to the United States given the lack of any evidence to support their allegations of any such persecution or harm within the meaning of s. 97 of the IRPA. CONCLUSION [19] For the reasons set out above, and in accordance with paragraph 111(1)(a) of the IRPA, I confirm the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection and dismiss the appeal. (signed) Jo-Anne Pickel Me Jo-Anne Pickel November 28, 2018 Date JP/bq 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Haïti : Le vodou - Pratiques, langage, structures occultes, instruments de menaces, persécutions et rites (January 17, 2017) at Tab 12.2 of the NDP for Haiti (October 20, 2017). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-04846 MB8-04847 RAD.25.02 (April 24, 2018) Disponible en français 7 RAD.25.02 (April 24, 2018) Disponible en français