TB7-20458

RAD File / Dossier de la SAR : TB7-20458 TB7-20459 Private Proceeding / Huis clos Redetermination of the Appeal - Nouvelle décision relative à l'appel Reasons and decision ? Motifs et décision Persons who are the subject of the appeal

XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision August 4, 2020 Date de la décision Panel M. Lee Tribunal Counsel for the persons who are the subject of the appeal Kristina Cooke Conseil des personnes en cause Designated representative

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

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX (Minor Appellant), citizens of the Bahamas, appeal a decision of the Refugee Protection Division (RPD) dated September 18, 2017. [2] The Principal Appellant is the designated representative for the Minor Appellant.

DETERMINATION [3] The Refugee Appeal Division (RAD) dismisses the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection.

BACKGROUND [4] The Appellants fear domestic violence at the hands of the Principal Appellant's ex-husband in the Bahamas. The Minor Appellant also fears gang violence in the Bahamas. The Principal Appellant and her four children left the Bahamas for Canada on XXXX XXXX, 2017 and made their refugee claims shortly afterward. [5] The RPD heard the claims on July 28, 2017. The RPD issued its decision on September 18, 2017, on the determinative issues of credibility and state protection. The Appellants appealed the decision to the RAD, and the RAD initially dismissed the appeal on August 17, 2018. [6] On December 19, 2019, the Federal Court allowed the applications for judicial review for the Principal and Minor Appellant. The applications of the Principal Appellant's other three children were dismissed. [7] A differently constituted RAD panel is now considering the appeals of the Principal and Minor Appellants again in this decision. Role of the RAD [8] According to the Federal Court of Appeal's ruling in Huruglica,1 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. New evidence application [9] The Appellants submitted new evidence on appeal before the RAD on re-determination. The Appellants submitted the following: a. Police reports about the ex-husband and Principal Appellant; b. Copy of the Principal

Appellant's photo identity document; c. Police report about the ex-husband and new girlfriend; d. Three news articles.2 [10] In order for the new evidence to be accepted, it must have arisen after the rejection of the claim, it must not have been reasonably available at the time of rejection; or it was not reasonable to expect the Appellants to have provided this evidence at the time of rejection. At least one of these criteria must be met in order for the new evidence to be accepted. This is in accordance with subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). The RAD will assess each of the items listed above. Police reports about ex-husband and Principal Appellant and photo identity card rejected [11] The Principal Appellant provided three police reports detailing incidents of abuse she experienced from her ex-husband in the Bahamas. The Principal Appellant looked for reports under her married and maiden name. She provided a copy of an identity card showing her maiden name. [12] The RAD finds that the police reports arose prior to the rejection of the hearing on September 18, 2017. The police reports are dated from 2003 and 2009. [13] However, the RAD finds that the reports were not reasonably available for to her at the time of rejection. In her affidavit, the Principal Appellant explains that she made attempts to obtain police reports prior to the

hearing, but was told that nothing was available.3 It was only in XXXX 2019, that a coworker advised her that she knew someone who worked for the police department.4 One of the police reports identifies the Principal Appellant by her maiden name.5 The RAD accepts that the Principal Appellant was unable to find reports in her own name until they were searched under her maiden name by this individual who worked for the police department. [14] Therefore, the RAD finds that the reports and the accompanying photo identity card meet at least one of the requirements under subsection 110(4) of the IRPA. [15] For new evidence to be accepted, it also must meet all three of the criteria listed in the Federal Court decisions of Raza and Singh. The evidence must be credible, relevant and new. [16] The RAD finds that the reports are credible police report evidence. On their face, the reports are consistent with the Principal Appellant's description in her affidavit. The reports include dates, details of the incidents, and names of the reporting officers. The reports are relevant evidence, as they show details of the Principal Appellant's abusive marriage with her ex-husband and attempts to contact the police. [17] However, the RAD does not find that the evidence is new. The RPD accepted that the Principal Appellant was in an abusive marriage with her husband during the time of their

relationship. This allegation was never contested. Also, the fact that the police were unresponsive during their marriage was also not contested. The RAD finds that the nature of this relationship was known at the time of the RPD hearing. These reports do not contradict any findings of fact made by the RPD. [18] Therefore, the RAD finds that the police reports and accompanying photo identity card are rejected as they do not meet all three of the criteria under Raza and Singh. Police report about ex-husband and new girlfriend rejected [19] The Appellants also provided a police report detailing abuse between her ex-husband and his new girlfriend, dated XXXX XXXX, 2010.6 In her affidavit, the Principal Appellant explains that she attempted to obtain this report earlier, but was unable to do so until she found a contact within the police department. [20] The RAD finds that the report arose prior to rejection. However, the RAD accepts that the Principal Appellant was unable to obtain the report until after the hearing because of her newfound contact within the police department. In this case, the RAD finds that this report was not reasonably available at the time of rejection. Therefore, the RAD finds that the new evidence meets at least one of the three criteria listed in subsection 110(4) of the IRPA. [21] However, the RAD finds that the report does not meet all three criteria

listed under Raza and Singh. In the affidavit, the Principal Appellant provides the name of the ex-girlfriend who was abused by her ex-husband. However, the report lists a woman by a different first name. the Principal Appellant does not give any explanation for this discrepancy in her affidavit. It is therefore uncertain whether the woman in the report is the same woman whom the Principal Appellant is referring to. Therefore, the RAD finds that the report is not credible. Also, this police report is not new evidence. The RPD did not dispute the Principal Appellant's allegation that the ex-husband was abusive to a subsequent girlfriend. This report does not contradict any of the RPD's findings. The Principal Appellant mentioned that her ex-husband was abusive to another girlfriend in her Basis of Claim (BOC) narrative, although she does not mention the name. Therefore, this was an allegation that was known at the time of the RPD hearing. [22] The RAD finds that this report does not meet all three of the criteria under Raza and Singh and therefore, it is rejected as new evidence. Three articles accepted as new evidence [23] The Appellants also provided three news articles as new evidence. The first article indicates that a marital rape bill in the Bahamas was delayed until the following year. The second article indicates that there has been a rise in rapes in the Bahamas. The

third article indicates that there is an epidemic of sexual violence in the Bahamas and why it must end. The articles were published in September 13, 2018, December 20, 2018, and February 28, 2019. [24] The RAD finds that the articles arose after the rejection of the claim in September 18, 2017, as they were published in 2018 and 2019. Therefore, the RAD finds that the articles meet at least one of the three criteria pursuant to subsection 110(4) of the IRPA. [25] The RAD finds that the articles are credible evidence. The articles appeared to be published from Bahamian newspapers. The names of the authors and the website where the articles were found are all provided. The articles are relevant to the hearing, since they discuss how women affected by domestic violence are affected in the Bahamas, which is the subject of the Appellants' claim. The articles are also new evidence, as they were published after the hearing, and they discuss how country conditions in the Bahamas may have changed for women facing domestic violence in the years that followed. [26] Therefore, the RAD finds that the articles meet all three of the criteria listed in Singh and Raza. The articles are accepted as new evidence. Oral hearing request denied [27] The Appellants requested an oral hearing pursuant to subsection 110(6) of the IRPA.7 For an oral hearing to be granted, the new evidence must meet all

three of the required criteria. The new evidence must raise a serious issue with respect to the credibility of the person who is the subject of the appeal, it must be central to the decision, and if accepted, would justify allowing or rejecting the claim. [28] In this case, only the news articles were accepted as new evidence. The RAD finds that the articles alone do not justify allowing or rejecting the refugee claim. The articles discuss how country conditions for domestic violence survivors continues to worsen. However, these articles do not speak to the personal aspect of the claim; namely whether the Principal Appellant's ex-husband is still motivated to harm her if she were to return. [29] Therefore, the RAD find that the news articles do not meet all three of the criteria. The request for an oral hearing is denied.

ANALYSIS [30] The RPD determined the claim on both the issues of credibility and state protection. The RAD upholds the RPD's decision on the issue of credibility. Therefore, the RAD need not consider the submissions made on state protection in its decision. [31] On June 15, 2020, the RAD provided the Appellants' counsel with a notice related to the COVID-19 pandemic. This notice advised that they had 30 days from the date that the notice was received to submit any document or written submission in support of the appeal. Counsel was also advised that the other requirements of Rule 29 and 110(4) continue to apply. To date, no documents or written submissions were provided in response to this notice. RPD was not obliged to consider compelling reasons [32] The Appellants submit that the RPD erred by failing to consider compelling reasons why they cannot return to the Bahamas.8 The Appellants submit that the RPD accepted that the Principal Appellant suffered past persecution from her ex-husband.9 The RPD did not indicate any doubt or misgivings with regard to her credibility. The Federal Court of Appeal has held that the RPD is obligated to conduct a compelling reasons assessment where there is past persecution and a change of country conditions.10 The Principal Appellant has clearly demonstrated past persecution and that the country conditions have changed in the Bahamas.11 [33]

The RAD disagrees with the Appellants in this particular case, and finds that the RPD was not obligated to consider compelling reasons in its analysis, as the RPD found that the Appellants were not Convention Refugees at the time of their departure from the Bahamas.12 [34] According to section 108(4) of the IRPA, compelling reasons is applicable only where the claimant has a well-founded fear of persecution when he or she has left his or her country of nationality and the reasons for the fear of persecution have ceased to exist. [35] In addition, the RPD is not required to consider whether the past persecution constitutes compelling reasons where it determines that the claimant was not a Convention Refugee at the time of departure from the country of nationality.13 [36] The RAD has carefully reviewed the audio recording of the hearing and the RPD's decision. In its decision, the RPD found that the Appellants did not have a forward-looking risk of persecution because the Principal Appellant had not seen her husband in person in approximately eight years at the time of the hearing in 2017.14 In its analysis, the RPD accepted that the Principal Appellant was in an abusive relationship with her ex-husband throughout her marriage which ended in 2009. The Principal Appellant testified that she had not seen her ex-husband in person since their altercation in front of her stepfather.15

While the Principal Appellant had some trouble remembering the date of this incident, her BOC indicated that this altercation occurred in XXXX 2009.16 Since that time, the ex-husband was deported back to Haiti twice, the final time being 2015. The Principal Appellant does not know if he has returned since that time. The RPD determined that instances where the Appellants believed they saw the ex-husband in the Bahamas in 2015 were based on speculation.17 The RAD find that the RPD determined that the serious possibility of persecution did not exist at the time of their departure in 2017. [37] Furthermore, the RPD also found that there was state protection available for the Appellants as the immigration authorities in the Bahamas deported the ex-husband back to Haiti in 2015 at the Principal Appellant's request.18 [38] The RPD would only be obligated to apply compelling reasons doctrine if it had found that the Appellants were Convention Refugees at the time of their departure. However, given that the RPD found that the Appellants' claim failed on credibility and state protection at the time of their departure from the Bahamas in 2017, the RAD finds that the RPD was not obligated to consider compelling reasons. RPD did not fail to assess past persecution at the hands of ex-husband [39] The Appellant submits that the RPD did not consider that the serial break-ins and harassment

were done by people related to the ex-husband.19 While there is no definite evidence that the ex-husband was behind the harassment and break-ins, he could very well be, and since he is well-connected, the RPD should have considered this to be a possibility.20 [40] In her testimony, the Principal Appellant explained that a co-worker advised her that a tall, skinny, dark-skinned man had come looking for her at her workplace on XXXX XXXX, 2017.21 The RPD found that this was not sufficient evidence to indicate on a balance of probabilities that her ex-husband was the person who had come looking for her on this occasion. The Principal Appellant's children also testified that they had seen a person looking through their bathroom window, and attempting to break into their home.22 The RPD found that there was no evidence to suggest that the Appellants were being personally targeted in these incidents.23 [41] The RAD has reviewed the Appellants' oral testimony regarding these incidents. The RAD agrees with the RPD, and finds that it is speculative to find that the ex-husband was behind each of these incidents of harassment and break-ins. The ex-husband was never identified on any of these occasions. The Principal Appellant herself did not personally witness any of these incidents. Also, the RAD finds that there is insufficient evidence to indicate that the ex-husband had coordinated the

harassment and break-ins to the Appellants' home after his deportation. At the hearing, the Principal Appellant testified that her ex-husband was residing in the Bahamas illegally. During his time in the Bahamas, he worked as a pool attendant for some time.24 Aside from that, the Principal Appellant explained that her ex-husband does not "do anything" and spent time buying numbers and gambling on the street.25 It is uncertain how the ex-husband would have the resources and influence to have other people break in and harass the Principal Appellant, two years after he had been deported to Haiti. [42] The RAD also considers that the Principal Appellant is uncertain of the ex-husband's whereabouts presently. At the hearing, the Principal Appellant testified that she believed he was in the Bahamas and likely living in a Haitian community village. She believes her ex-husband is likely living in the Bahamas because he considers the Principal Appellant to be his property, and so he would be hunting her down.26 The Principal Appellant also explained that it is very easy to return from Haiti to the Bahamas by boat.27 [43] Once again, the RAD finds that the Principal Appellant's belief that her ex-husband has returned to the Bahamas and is actively looking for her is speculative. At the time of this appeal, it has been over 10 years since the Principal Appellant has seen her ex-husband in

person. It has been approximately three years since she has heard any communication from her ex-husband. At the time that she came to Canada made her refugee claim in 2017, the ex-husband had been deported to Haiti two years prior. There has been no new evidence provided on appeal to show that he has returned to the Bahamas or that any of her family or friends residing in the Bahamas have seen him. The RAD finds that there is insufficient evidence to indicate that there is any forward-looking risk to the Principal Appellant if she returns to the Bahamas, or that her ex-husband would harm her if she returned, given that the Principal Appellant cannot confirm which country he is presently living in. Minor Appellant will not be personally targeted for gang violence [44] In its decision, the RPD found there was no evidence to suggest that the Minor Appellant was being targeted by reason of any of the Convention grounds, or for any reason at all.28 The RPD further found that it was speculative to suggest that the Minor Appellant would be killed or harmed if he were to join a gang in the future. There is no evidence to suggest that he has ever been threatened by a gang.29 [45] The Appellants did not provide any submissions regarding the RPD's assessment of the Minor Appellant's claim. [46] In its independent assessment, the RAD agrees with the RPD. The RAD finds that the Minor

Appellant's belief that he would be subjected to future gang recruitment is correctly assessed under section 97 as there is no nexus to a Convention ground. The RAD finds that on a balance of probabilities, there is insufficient evidence to indicate that the Minor Appellant would face a personalized risk of future gang recruitment. The Principal Appellant testified that the Minor Appellant was getting into fights at school and that this led her to believe he would be vulnerable to gang recruitment in the future.30 Fights at school are not a sufficient indication that the Minor Appellant would be targeted or threatened by gangs upon return to the Bahamas. Therefore, the RPD's assessment for the Minor Appellant is correct. In summary [47] After considering all of the evidence in this claim, the RAD finds that the Appellants would not face a serious possibility of persecution at the hands of the Principal Appellant's ex-husband if they were to return to the Bahamas, nor would they face a personalized risk to their lives, of torture, or of cruel and unusual treatment or punishment. While the RAD also accepts that the Principal Appellant endured an abusive relationship with her husband during and after their marriage, the RAD considers that the Principal Appellant has not seen or heard from the ex-husband in many years, and has not provided sufficient evidence to demonstrate that he has illegally returned to the Bahamas after 2015, and that he is presently looking for her. The RAD also finds that the Minor Appellant would not face a personalized risk of future gang recruitment if he were to return to the Bahamas, as he has never been approached by gangs during his time in the Bahamas. Therefore, for the reasons provided above, the RPD's decision is upheld.

CONCLUSION [48] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) M. Lee M. Lee August 4, 2020 Date 1 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, paragraph 78. 2 Exhibit P-3, Post-FC Submissions, Exhibits A-F, at pages 1-23. 3 Exhibit P-3, Post-FC Submissions, Appellant's Affidavit, at page 1, paragraph 4. 4 Exhibit P-3, Post-FC Submissions, Appellant's Affidavit, at page 2, paragraph 4. 5 Exhibit P-3, Post-FC Submissions, at page 9. 6 Exhibit P-3, Post-FC Submissions, Exhibit C, at page 13. 7 Exhibit P-3, Post-FC Submissions, at page 1. 8 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 35, paragraph 15. 9 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 36, paragraph 16. 10 Ibid; Yamba: M.C.I. v. Yamba, Yamba Odette Wa (F.C.A., no. A-686-98), Isaac, Robertson, Sexton, April 6, 2000. 11 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 38, paragraph 20. 12 Cihal, Pavla v. M.C.I. (F.C.A., no. A-54-97), Stone, Evans, Malone, May 4, 2000. 13 Ibid. 14 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 13, paragraph 45. 15 RPD Hearing Recording, July 18, 2017, at 56:23. 16 Exhibit RPD-1, RPD Record, Exhibit 2, Basis of Claim (BOC) narrative, at page 29, paragraph 11. 17 Exhibit RPD-1,

RPD Record, RPD Reasons and Decision, at pages 12-13, paragraph 44; page 16, paragraph 60. 18 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 13, paragraph 46. 19 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 46, paragraph 32. 20 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 48, paragraph 33. 21 RPD Hearing Recording, July 18, 2017, at 33:10. 22 Exhibit P-2, Appellant Record, at page 15, paragraphs 51-53. 23 Exhibit P-2, Appellant Record, at page 15, paragraph 55. 24 RPD Hearing Recording, July 18, 2017, at 1:05:05. 25 Ibid. 26 RPD Hearing Recording, July 18, 2017, at 57:57. 27 RPD Hearing Recording, July 18, 2017, at 1:02:20. 28 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 17, paragraph 63. 29 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 18, paragraph 67. 30 RPD Hearing Recording, July 18, 2017, at 1:10:50. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-20458 TB7-20459 RAD.25.02 (January, 2020) Disponible en français 2 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