MB9-15004

RAD File No. / No de dossier de la SAR : MB9-15004 MB9-15005 Private Proceeding/Huis clos 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 Montréal, QC Appel instruit / entendu à Date of decision July 31, 2020 Date de la décision Panel Me Miriam McLeod Tribunal Counsel for the persons who are the subject of the appeal François Jean Denis Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre

REASONS FOR DECISION

OVERVIEW [1] XXXX XXXX XXXX (the principal appellant) and XXXX XXXX XXXX (the associate appellant) are citizens of Haiti. The associate appellant is the principal appellant's sister. The principal appellant fears serious harm by a group of criminals that are jealous of his role as a proxy for XXXX XXXX XXXX XXXX In addition, the male appellant alleges that the criminals are out to get him because they allegedly reported them to the police. The associate appellant is basing her claim on the allegations in her brother's Basis of Claim Form (BOC Form) and alleges that she fears gender-based violence in Haiti. The Refugee Protection Division (RPD) rejected the principal appellant's refugee protection claim due to a lack of credibility in light of omissions and contradictions between his BOC Form, testimony and the documents entered into evidence. The RPD also rejected the associate appellant's claim because she had based her claim on her brother's allegations that were found not to be credible and because she failed to establish that she would be part of the most vulnerable group of women if she had to return to Haiti. On appeal, the appellants are claiming that the RPD erred in analyzing their credibility and that it failed to properly assess the associate appellant's objective fear and the objective documentary evidence on the issue of the risk of rape for women in Haiti. The Refugee Appeal Division (RAD) dismisses the appeal.

REQUEST FOR AN ORAL HEARING [2] In this case, the appellants requested an oral hearing.1 However, the appellants have not submitted any new evidence. Without new evidence, the RAD cannot hold an oral hearing pursuant to subsection 110(6) of the Immigration and Refugee Protection Act. Therefore, the request is denied.

ANALYSIS [3] The RAD must conduct a probing, thorough, comprehensive and independent review of the evidence presented in light of the male appellant's submissions on appeal.2 In this case, the RAD listened to the recording and applied the standard of correctness.

PRINCIPAL APPELLANT Attacks and interactions with the Haitian authorities [4] The RAD agrees with the RPD that the male appellant omitted one of the alleged attacks on his home from his BOC Form. The RPD noted that the male appellant states in his BOC Form that there were two incidents where criminals vandalized his home, but he testified that his BOC Form includes three incidents where criminals vandalized his home. In light of that omission, the RAD finds that the RPD did not err by drawing a negative credibility inference with regard to the alleged attacks on his home. The RAD notes that the male appellant testified at the hearing that there was a first attack on his home on April 24, 2017, a second attack on May 5, 2017, an attack on his sister's home on May 31, 2017, and a third attack on his home on June 5, 2017. However, in his BOC Form, he states that there were two attacks on his home and one attack on his sister's home. The male appellant does not provide any dates for the first attack on his home or the attack on his sister's home in his BOC Form, but he indicates that the second attack on his home took place on June 5, 2017. The RPD did not accept the male appellant's explanation that he thought he had included three incidents in his BOC Form, because it is not an explanation. The RPD therefore drew a negative credibility inference because the male appellant was

unable to explain how he could have omitted one of the attacks from his BOC Form, and the RAD finds that it did not err. [5] The RAD notes that the RPD did not err when it drew a negative credibility inference because of the problems it noticed with the male appellant's statements about his interactions with the Haitian authorities after the alleged attacks. Specifically, the male appellant states in his account that he filed a complaint with the justice of the peace after the second attack, but he testified that he filed a complaint with the justice of the peace after the third attack (of June 5, 2017). When the RPD confronted him with this contradiction, he stated that he had gone to the justice of the peace only after the third attack. Moreover, he states in his BOC Form that he asked the police for help after the attack on June 5, 2017, rather than the justice of the peace, as he stated in his testimony. What is more, the male appellant testified that he had filed a complaint with the police after the first attack but that the police had ridiculed him. As a result, he never went back to the police. The RPD did not accept his explanation that he had not gone to the police station after the first visit because it does not consider his answer an explanation; he was simply repeating what he had stated. In light of those contradictions, the RPD drew a negative credibility

inference with regard to his allegation that he had asked the Haitian authorities for help. Having listened to the recording, the RAD agrees with the RPD that there were contradictions, and the RAD agrees that the male appellant failed to explain that contradiction. Given that the male appellant was unable to justify that contradiction, the RPD had reason to conclude that it negatively affects his allegation that he had asked the authorities for help, and the RAD agrees. [6] The RPD also noted that the male appellant testified at the hearing that he went to a justice of the peace after the attack on June 5, 2017, but that he wrote (by hand) in his BOC Form that he went to the police to ask for help after the attack on June 5, 2017. When the RPD confronted him with that contradiction, he stated that he had not written that in his BOC Form, that he did not recognize the writing and that he did not know why it was there. The RPD did not accept that explanation because the male appellant was shown his BOC Form at the beginning of the hearing; he stated that he recognized it and swore that it was true, correct and complete.3 What is more, the RAD agrees with the RPD that there were problems with the copy of the complaint to the justice of the peace, which was entered into evidence by the male appellant to support his allegations about an attack on his home on June 5, 2017. Given

that one of the only dates that the male appellant provides in his BOC Form is that of the attack on June 5, 2017, the fact that there is a different date in the justice of the peace's report undermines the credibility of his allegations. [7] Considering that one of the attacks was omitted and that he failed to provide dates for the other two alleged attacks in his BOC Form, the RAD is of the opinion that it was impossible to identify which alleged attacks on his home were credible. Similarly, given that the male appellant was inconsistent as to the complaints he had made and to which Haitian authority, it became impossible to determine which of the allegations about seeking help from the authorities were credible. The male appellant submitted an excerpt from registry minutes for the attack on June 5, 2017.4 However, the RAD agrees with the RPD that the document cannot be given probative value because the male appellant was inconsistent in his BOC Form and his testimony concerning which authority he had sought help from after this attack. Moreover, the excerpt from the minutes indicates that the alleged attack occurred on June 4, 2017,5 instead of June 5. It should be noted that the RAD agrees with the appellants that the RPD erred when it found that the principal appellant's identification number on the complaint was not the same.6 However, this error does not change the fact

that the RAD cannot grant probative value to that document because there are several credibility issues. [8] Although the appellants allege on appeal that the RPD should not have rejected the principal appellant's explanation that he was not specific about some aspects of his BOC Form because he was under stress while preparing his written account,7 the RAD cannot accept this argument. He did not provide that explanation when the RPD confronted him about the omission of one of the attacks from his BOC Form or the inconsistencies between his testimony and BOC Form regarding the complaints that he had made and to which Haitian authority. Prospective risk [9] The RAD finds that the RPD did not err when it drew a negative credibility inference with regard to the male appellant's allegations that his family members received threats after he had left Haiti. The male appellant stated that his wife suffered two incidents after he left Haiti: she received a threatening call in February 2018, and criminals approached her as she was leaving a church in XXXX in March 2018. However, in the addendum to his BOC Form, he states that there were three incidents after he left Haiti. His wife received a threatening call on October 20, 2017; the home where his wife and son had been hiding in XXXX was vandalized on December 27, 2017; and the home where his wife and son had been hiding in XXXX was

vandalized on November 15, 2018. The RPD did not accept the male appellant's explanation that he was terrified and stressed while writing the statement because the discrepancies between the addendum to the BOC Form and his testimony were so significant that they could not be attributed to stress. The discrepancies between his addendum and testimony are not limited to dates but also undermine the stated facts. The male appellant testified that the criminals had approached his wife in front of a church, but the addendum indicates that the homes in XXXX and XXXX, where his family was hiding, were vandalized. These versions of the facts are significantly different. The RAD therefore agrees with the RPD that stress is not a sufficient explanation to justify the considerable discrepancies between his testimony and his addendum. In particular, the RAD notes that the addendum was submitted to the RPD on April 4, 2019,8 which is more than two years after he submitted his initial BOC Form. Consequently, the RAD is of the opinion that stress is not a sufficient explanation to justify those issues. For all these reasons, the RAD therefore finds that the RPD did not err when it concluded that the male appellant failed to establish, on a balance of probabilities, that the criminals are still searching for him and that his life is still in danger in Haiti. [10] The RAD also agrees with the

RPD that the wife's complaint dated November 15, 2018,9 which states that the criminals went to the homes in XXXX and XXXX and that she received a threatening call, is inconsistent with the male appellant's testimony. The male appellant never mentioned the vandalism attacks on the homes in XXXX and XXXX, and the male appellant's wife did not provide any details or dates for the reported incidents in her complaint. Consequently, the RPD did not err when it decided not to give probative value to that document because of the credibility issues with the allegations contained in it. In addition, the RAD agrees with the RPD that probative value cannot be granted to the witness letter10 attesting to the attack on the home in XXXX because the male appellant never mentioned this incident during the hearing and because there are credibility issues with these allegations stemming from that omission. Credibility findings [11] The RAD does not agree with the appellants' argument that the RPD conducted a microscopic analysis of the evidence and that it was [translation] "overly vigilant about non-essential elements."11 The RAD notes that the contradictions and omissions that the RPD pointed out were clearly from his testimony and that they caused several inconsistencies between his testimony, BOC Form and the addendum regarding the number of alleged attacks, his apparent attempts to seek

help from the Haitian authorities (and from which Haitian authorities) and the incidents that allegedly occurred after he left the country. The RAD agrees with the RPD that the male appellant provided documents confirming that he was responsible for XXXX Mr. XXXX XXXX.12 However, in light of the credibility issues cited above, the RAD is of the opinion that he failed to establish, on a balance of probabilities, that he had been targeted by criminals because he XXXX XXXX XXXX XXXX Consequently, the RAD agrees with the RPD that the principal appellant failed to establish, on a balance of probabilities, that he would be personally subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment by criminals if he were to return to Haiti.

ASSOCIATE APPELLANT Attack on her home [12] Given that the principal appellant was not credible and that the associate appellant based her refugee protection claim on the principal appellant's allegations, the RPD concluded that her claim had to be rejected by extension. The RAD notes that the associate appellant alleges that there was an attack on her home, and both appellants submit that this attack is related to the principal appellant's problems. In light of the principal appellant's credibility issues noted above, this allegation must be analyzed based on the evidence from the associate appellant. The RPD noted that a complaint to a justice of the peace was entered into evidence,13 but it decided not to give any weight to the complaint, since the associate appellant states in the complaint that she could not identify the criminals and does not mention the fact that she was allegedly being targeted because of her relationship to the principal appellant. The appellants claim that the RPD erred because it did not give any weight to the complaint filed by the female appellant. According to the appellants, the fact that she could not identify the criminals does not mean that there is no connection because of her relationship to the principal appellant.14 Although the associate appellant testified at the hearing that she believes the attack was connected to her brother and the

fact that he was in hiding at her home, she failed to include that in her complaint to the justice of the peace. The RPD did not accept her explanation to justify this omission, namely that she was in shock, because she filed the complaint ten days after the incident.15 The RPD not only concluded that it would give no weight to the complaint because of the omission of this alleged connection to her brother's problems, but also because the associate appellant arrived in Canada three months before her brother and did not file the complaint herself. The Canada Border Service Agency attached it to the appellants' refugee protection claim.16 [13] The RAD notes that the RPD erred when it found that the appellants arrived in Canada separately, because they arrived the same day on XXXX XXXX XXXX 2017,17 and when it found that the associate appellant did not submit the complaint to the RPD herself. The RAD accepts the appellants' argument on appeal that the associate appellant submitted a copy of the complaint to the authorities when she arrived in Canada and was therefore not required to file it in the list of exhibits again, particularly because she knew that she had already filed it.18 Therefore, the RAD notes that the RPD erred by considering how the document was entered into evidence. [14] The RAD agrees with the RPD that the female appellant's explanation is not sufficient to

justify the fact that she did not state in her complaint that she thought there was a connection between the attack on her home and her brother's problems, given that she filed the complaint ten days later. The RAD also agrees with the RPD that this omission undermines the credibility of her statement that the incident is related to the fact that her brother was in hiding at her home. However, the RAD is of the opinion that the RPD erred by giving no weight to the complaint. The RAD believes that this complaint demonstrates that there was an attack on the associate appellant's home in May 2017, but the information in the complaint does not establish anything else. Consequently, the RAD is of the opinion that the associate appellant failed to establish, on a balance of probabilities, that the attack on her home was connected to her brother or that the attack on her home was anything other than an isolated incident of generalized violence. The RAD therefore concludes that she failed to establish, on a balance of probabilities, that she would be personally subjected to a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment if she were to return to Haiti. Risk as a woman19 [15] The RAD notes that the associate appellant failed to state in her BOC Form or during her testimony that she had a gender-based fear of persecution in Haiti. Instead,

she stated that she feared that the criminals who had allegedly targeted her brother would kill or rape her if she were to return to Haiti.20 The RPD still considered the documentation on the situation of women in Haiti. The RPD acknowledged that gender-based violence is widespread in Haiti, but that if she were to return to Haiti, her situation would reduce her risk of being subjected to gender-based violence because her brother and family members could support and protect her in Haiti.21 The RPD considered the fact that the appellants had jobs in Haiti before they left, that they are educated, and that they testified that they are very close and live together in Canada.22 The RPD concluded that the associate appellant failed to establish that she would have a well-founded fear of persecution if she had to return to Haiti.23 [16] The appellants are challenging the RPD's finding regarding the associate appellant's risk as a woman if she had to return to Haiti. They emphasize that violence against women is a widespread and generalized problem in Haiti. The appellants explain that the associate appellant would not have male protection in Haiti because her ex-common-law partner lives in Canada, that she would not find work, that she would not have family support because her parents died and most of her brothers and sisters no longer live in Haiti, and that the RPD should not have

assumed that the principal appellant could protect her.24 [17] The RAD agrees with the RPD that the objective documentation25 indicates that violence against women is widespread in Haiti26 and that it is not only women who live in displaced persons camps who are particularly vulnerable to violence, as women in Haiti also face discrimination and stereotypes. At the same time, the documentation indicates that women who have a [translation] "protector" and family support are at lower risk of suffering violence.27 In Dezameau,28 the Federal Court states that "[t]he evidence provided by the applicant must still satisfy the Board that there is a risk of harm that is sufficiently serious and whose occurrence is 'more than a mere possibility.'" If the female appellant were to return to Haiti, the risk of gender-related persecution would have to be assessed based on her situation and particular circumstances.29 [18] The RAD notes that the associate appellant testified that she does not have family in Haiti and that her brother would not have a salary in Haiti to help her because he resigned from his job to flee the country.30 However, the RAD is of the opinion that the RPD did not assume that the principal appellant could protect the associate appellant in Haiti. The appellants testified that they are very close and live together in Canada, and the associate appellant herself

acknowledged that, if she had to return to Haiti, her brother would help her if he could.31 On appeal, although the appellants state that the principal appellant's wife and son live in Haiti and are caught in the principal appellant's problems with the criminals,32 the RPD and RAD found that the principal appellant's allegations were not credible. As a result, the RAD is of the opinion that the associate appellant could receive support from that part of her family and protection from the principal appellant when they return to Haiti. The RAD also notes that the female appellant has a university education and that she had three years of work experience as an XXXX XXXX XXXX XXXX XXXX XXXX before leaving the country.33 The RAD is of the opinion that her education and work experience could also help with her reintegration should she return to that country. [19] The associate appellant never alleged that she fears returning to Haiti because she is a woman, and the RAD concludes that she failed to demonstrate that her living conditions would subject her to a serious possibility of persecution on that basis. For all these reasons, the RAD is of the opinion that the RPD did not err when it concluded, taking into account the documentary evidence and the associate appellant's particular situation, that she had failed to establish that there is a serious possibility that she would be persecuted by reason of her membership in the particular social group of Haitian women.

CONCLUSION [20] The RAD dismisses the appeal and confirms the RPD's determination that the appellants, XXXX XXXX XXXX and XXXX XXXX XXXX, are neither Convention refugees nor persons in need of protection. (signed) Miriam McLeod Me Miriam McLeod July 31, 2020 Date 1 P-2, appellants' record, appeal memorandum, p. 18. 2 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 3 Recording of the Refugee Protection Division (RPD) hearing at 9:53 (April 15, 2019). 4 SPR-1, RPD record, p. 227. 5 The excerpt from the registry minutes is dated June 5, 2017, but it reports an attack the occurred the previous night. 6 P-2, appellants' record, appeal memorandum, p. 22. 7 P-2, appellants' record, appeal memorandum, pp. 22-23. 8 SPR-1, RPD record, p. 221. 9 SPR-1, RPD record, p. 231. 10 SPR-1, RPD record, p. 232. 11 P-2, appellants' record, appeal memorandum, p. 22. 12 SPR-1, RPD record, Exhibit C-3, p. 225 and Exhibit C-4, p. 226. 13 SPR-1, RPD record, p. 144. 14 P-2, appellants' record, appeal memorandum, p. 23. 15 SPR-1, RPD record, RPD decision, p. 11 at paragraph 33. 16 SPR-1, RPD record, RPD decision, p. 11 at paragraphs 33-34. 17 Please refer to the RPD record, pp. 75 and 86 (principal appellant) and pp. 88 and 100 (associate appellant). 18 P-2, appellants' record, appeal memorandum, p. 23. 19 In its analysis of this appeal, the Refugee Appeal Division (RAD) considered

Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 20 Recording of the RPD hearing at 2:25:04 (April 15, 2019). 21 SPR-1, RPD record, RPD decision, pp. 12-13 at paragraphs 37-39. 22 SPR-1, RPD record, RPD decision, p. 13 at paragraph 40. 23 Ibid. 24 P-2, appellants' record, appeal memorandum, pp. 24-26. 25 The RAD is of the opinion that the information on violence against women in the most recent National Documentation Package (NDP) (dated March 31, 2020) does not significantly change the information in the NDP that was available at the time of the hearing (dated March 29, 2019). 26 Please refer to the NDP on Haiti, March 31, 2020, Tab 2.2, Haiti. Amnesty International Annual Report 2017/2018: The State of the World's Human Rights, Amnesty International, February 22, 2018 (available at the same tab in the NDP dated March 29, 2019). 27 NDP on Haiti, March 31, 2020, Tab 5.12, ?Haïti : Les violences faites aux femmes [Haiti: violence against women], France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons], January 9, 2017 (available at the same tab in the NDP dated March 29, 2019). 28 Dezameau, Elmancia v. M.C.I. 2010 FC 559. 29 Josile, Duleine v. M.C.I., 2011 FC 39. 30 Recording of the RPD hearing at 2:45:30-2:48:26 (April 15, 2019). 31 Recording of the RPD hearing at 2:48:13 (April

15, 2019). 32 P-2, appellants' record, appeal memorandum, p. 25. 33 SPR-1, RPD record, p. 94. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-15004 RAD.25.02 (January 14, 2020) Disponible en français 11 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 14, 2020) Disponible en français