MB8-01628

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 No. / No de dossier de la SAR : MB8-01628 MB8-01629 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 12, 2018 Date de la décision Panel Me Murielle Henri Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Brigitte Objois 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 INTRODUCTION [1] The principal appellant, XXXX XXXX, a citizen of Haiti, and the minor appellant, XXXX XXXX XXXX XXXX XXXX, a citizen of Chile, are appealing the decision rendered by the Refugee Protection Division (RPD) on January 8, 2018. [2] They are presenting new evidence and requesting an oral hearing. [3] They are asking the Refugee Appeal Division (RAD) to set aside the RPD's determination and allow their refugee protection claim or to refer their case to the RPD for a new hearing. DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), I am setting aside the RPD's determination and substituting my own determination that XXXX XXXX is a person in need of protection. The appeal is allowed. [5] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the RPD's determination that XXXX XXXX XXXX XXXX XXXX is not a Convention refugee or a person in need of protection. The appeal is dismissed. OVERVIEW AND FACTUAL BACKGROUND OF THE APPEAL [6] In her Basis of Claim Form (BOC Form), the principal appellant alleges a fear of returning to Haiti and to Chile. When she was living in Haiti, she and her brother were responsible for a XXXX XXXX XXXX. In XXXX 2011, during a dispute with the XXXX, who belonged to a powerful gang, he made death threats against them. On XXXX XXXX, 2011, her brother was killed. The following day, she received an anonymous call stating that they were coming for her. Frightened, she sought refuge at her mother's home in Morne-à-Chandelle. In XXXX 2011, people in hoods came to her mother's home and fired shots at her. She left Haiti on XXXX XXXX XXXX 2011, for Chile. [7] In Chile, she had a daughter, the minor appellant, with XXXX XXXX XXXX XXXX XXXX. In XXXX 2013, she sought child support from him and Mr. XXXX XXXX XXXX made death threats against her. Frightened, she returned to Haiti in XXXX 2014. On XXXX XXXX XXXX 2014, the criminals found her, beat her up and left her for dead. She went back to another area of Chile, but Mr. XXXX XXXX XXXX tracked her down and threatened again to kill her. The next day, two armed men came to her home but she pretended not to be there. [8] In XXXX 2016, she left Chile for the United States. She left the United States for Canada because of the US immigration policies. IMPUGNED RPD DECISION [9] On January 8, 2018, the RPD rejected the principal appellant's refugee protection claim, finding that she was not credible with respect to her allegations of fear in Haiti and in Chile. As for the minor appellant, the RPD concluded that she was a Chilean citizen and could therefore obtain protection in that country. APPELLANTS' POSITION [10] In her memorandum, the principal appellant submits that the RPD erred in finding that her credibility was undermined because she had not claimed asylum in either Chile or the United States. [11] In addition, she alleges that the RPD erred in concluding that her behaviour in returning to Haiti was inconsistent with that of someone who fears for her life or safety. [12] Lastly, she submits that the principles of natural justice were breached. [13] No arguments were made with regard to the minor appellant. ADMISSIBILITY OF NEW EVIDENCE AND REQUEST FOR AN ORAL HEARING [14] In support of the appeal, the principal appellant presented the following new evidence: a) a birth certificate issued on XXXX XXXX XXXX 2017, and its translation dated October 6, 2017; b) a power of attorney from the minor appellant's father signed on XXXX XXXX XXXX 2017, and its translation dated October 6, 2017; c) a statutory declaration from the principal appellant signed on February 18, 2018; and d) a statutory declaration from the appellants' lawyer signed on February 19, 2018. a) Copy of the minor child's birth certificate issued on XXXX XXXX, 2017, and its translation from Spanish to French, dated October 6, 2017 [15] In her memorandum, the principal appellant states that the birth certificate and its translation establish the parent-child relationship between the two appellants and are relevant to the assessment of her credibility. [16] The birth certificate was issued on XXXX XXXX, 2017, that is, before the RPD hearing, which was held on September 22, 2017. The translation was done on October 6, 2017, after the RPD hearing. However, the appellant does not explain why this translation was not available at the time of the hearing and has not demonstrated that the translated certificate was not reasonably available or that she could not reasonably have been expected, in the circumstances, to have presented it at the time of the rejection. [17] For these reasons, I consider that these documents are inadmissible in the appeal. b) A power of attorney signed by the minor appellant's father dated XXXX XXXX XXXX 2017, and its translation dated October 6, 2017 [18] In her memorandum, the principal appellant states that these documents establish that she has sole custody of the minor appellant and are relevant to the assessment of her credibility. [19] The power of attorney and the translation were prepared after the RPD rendered its decision. However, I do not consider this to be new evidence because these facts were already before the RPD. The principal appellant cannot provide additional evidence to corroborate facts that were already presented to the RPD. The appellant stated that she was not on good terms with the child's father and that is why the power of attorney was not available. However, I note that she was able to take steps after the RPD hearing-within 10 days, in fact-to obtain the power of attorney. She has therefore not established that the power of attorney and its translation were not reasonably available or that she could not reasonably have been expected, in the circumstances, to have presented them at the time of the rejection. [20] For these reasons, I consider that these documents are inadmissible in the appeal. c) Statutory declaration from the principal appellant signed on February 18, 2018 [21] This document was signed after the hearing. However, I do not consider it to be new evidence because the facts mentioned in the affidavit were already before the RPD. For this reason, I consider this document to be inadmissible in the appeal. d) Statutory declaration from the appellants' lawyer signed on February 19, 2018 [22] This document was signed after the hearing. However, I do not consider it to be new evidence because the facts mentioned in the affidavit were already before the RPD. For this reason, I consider this document to be inadmissible in the appeal. DECISION WITH RESPECT TO AN ORAL HEARING BEFORE THE RAD [23] The principal appellant is requesting an oral hearing before the RAD. However, none of the evidence presented was found to be admissible. For this reason, I am of the opinion that there is no cause to hold a hearing. APPLICABLE STANDARD OF REVIEW [24] For questions of fact, mixed fact and law, and law, the RAD applies the standard of correctness.1 In assessing the credibility of oral evidence, the RAD may show deference in situations where the RPD had a meaningful advantage. Unless otherwise stated in my reasons, I have applied the standard of correctness to all findings. ANALYSIS Preliminary issue [25] Counsel for the appellants submits that on October 16, 2017, she sent the RPD Registry a translated birth certificate and a translated power of attorney from the minor appellant's father giving sole custody to the principal appellant. However, I checked with the RPD Registry and there was no information about documents being filed around October 16, 2017. Moreover, the Registry contacted counsel for the appellants on October 25, 2018, inviting her to submit evidence that the documents were filed. On December 5, 2018, counsel for the appellants sent a letter to the Registry stating that the notes in her file indicate that she filed documents in October 2017. Yet, although she was asked to do so, counsel presented no evidence to corroborate that statement. Credibility assessment Parent-child relationship and legal custody [26] According to the RPD, the lack of documentation proving that the principal appellant has sole custody of the child, despite repeated requests and the time granted, undermined the principal appellant's credibility concerning her true intentions in coming to Canada, as well as the alleged facts concerning her fear. [27] I do not agree with the RPD's conclusion. At the hearing, the principal appellant explained that she had the minor appellant's passport as well as documentation proving her sole custody. She explained, however, that the US authorities had confiscated the passport and that she has lost the documents establishing her sole custody. She stated that she would not have been able to leave Chile without documentation proving her parent-child relationship and sole custody. [28] Document 3.4 of the documentation on Chile states that a parent who leaves Chile with a minor must have authorization from the court or the other parent to be able to leave the country.2 Therefore, in my opinion, the principal appellant's explanations are credible. The RPD erred on this point. Asylum claim in Chile [29] The RPD found that the principal appellant's failure to claim asylum in Chile undermined her credibility, because she did not try to acquire a permanent status when she arrived. The appellant submits that she took steps and obtained temporary residence, with which she was able to stay in Chile for several years. [30] In my opinion, the RPD erred in its assessment of the appellant's behaviour. In light of the appellant's testimony, it appears that she took steps to obtain temporary resident status, and this status enabled her to live in Chile without any problems. Furthermore, the case law has established that failing to claim refugee protection in the first safe country is not determinative.3 I therefore conclude that the RPD erred in finding that the appellant's failure to claim asylum in Chile undermined her credibility. Asylum claim in the United States [31] The RPD found that the principal appellant's failure to apply for asylum in the United States undermined her credibility regarding her alleged fear. The appellant argues that she provided a reasonable explanation, namely, that a lawyer had told her she had no chance of success, given the current administration. [32] While it is established case law that failure to claim asylum in the United States demonstrates a lack of subjective fear on the part of the claimant, seeking immigration advice suggests otherwise. I therefore conclude that the RPD erred in finding that the appellant's credibility was undermined. Return to Haiti [33] The RPD drew a negative inference from the fact that the principal appellant returned to Haiti. It also did not believe the allegation that she had been beaten and left for dead there. The principal appellant submits that she returned to Haiti after two and a half years because she was having serious problems in Chile, she thought she would no longer be in danger in Haiti given the time that had passed, and she took precautions by living in another area. [34] The principal appellant provided a credible explanation for her behaviour. The Federal Court has stated that a return to the country of nationality may indicate that a well-founded fear of persecution is lacking where the claimant's conduct is inconsistent with such a fear.4 However, in this case, the appellant behaved in a manner consistent with a fear related to death threats: she returned after several years and she went to live in another city. I am therefore of the opinion that the RPD erred in finding that the principal appellant's return to Haiti undermined her credibility. State protection [35] It is true that not seeking protection from the authorities can be fatal to a refugee protection claim. However, in this case, the appellant has established that this protection would not be forthcoming. The appellant alleged that she did not seek police protection because the police are often affiliated with criminals. [36] The documentary evidence on the record supports the appellant's statement. According to the evidence, the state has taken measures to combat violence: it has provided training and hired more officers in the Police nationale haïtienne (PNH) [Haitian national police]. However, these measures are not sufficient, given that the PNH is not yet able to protect the majority of citizens.5 In addition, the Haitian justice system reportedly fosters impunity.6 Finally, representatives from Haitian civil society and across government sectors have consistently agreed that Haiti's government lacks the capacity to eradicate violence.7 Consequently, based on this clear and convincing evidence, the principal appellant cannot obtain adequate state protection. Internal flight alternative [37] Based on the evidence on the record, the panel concludes, on a balance of probabilities, that the principal appellant will not be safe anywhere in Haiti, including in the internal flight alternative (IFA) locations in Port-de-Paix or Cap-Haitien. I note that, following her brother's death, she hid in Morne-à-Chandelle, but the criminals found her there. Moreover, the people who threatened her were able to locate her three months after she returned to Haiti, which demonstrates that they are still interested in her. [38] When the RPD questioned her about the IFAs in Port-de-Paix or Cap-Haitien, the appellant responded that Haiti had no borders and so there was nothing to prevent the criminals who are threatening her from finding her in the proposed cities and that it is easier for them to harm her in another city, because no one will help her if she is a stranger. [39] The information in the National Documentation Package confirms the appellant's statements regarding the ease with which individuals can be located in Haiti. Document 7.3 states that people are easily traced in Haiti because of its size and the fact that people know each other and talk to each other throughout the country. This document goes on to state that there is no "prescription" for this type of risk because there have been times when a person has been traced a number of years after escaping, then kidnapped and tortured. Consequently, I am of the opinion that the principal appellant could be easily located anywhere in Haiti, given the size of the country, the influence of the group of criminals, and their clear interest in her. [40] For all these reasons, I conclude that the principal appellant has established, on a balance of probabilities, that she would be personally subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment if she were to return to Haiti. Minor appellant [41] The minor appellant has Chilean nationality by birth. The principal appellant, as the designated representative, presented no evidence or testimony relating to any fear on the part of the minor appellant of being persecuted or subjected to a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment in her country of nationality. The minor appellant is therefore not a Convention refugee or a person in need of protection. CONCLUSION [42] Pursuant to paragraph 111(1)(b) of the IRPA, I am setting aside the determination of the RPD and substituting the determination that, in my opinion, should have been made, namely, that XXXX XXXX is a person in need of protection. [43] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX is not a Convention refugee or a person in need of protection. (signed) Murielle Henri Me Murielle Henri December 12, 2018 Date IRB translation Original language: French 1 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 2 SPR-1, National Documentation Package (NDP) on Chile, April 28, 2017, Document 3.4. 3 Gavryushenko v. Canada (Citizenship and Immigration), 2000 CanLII 15798 (FC), [2000] FCJ No. 1209, at paragraph 11; Gonzales v. Canada (Citizenship and Immigration), 2010 FC 1292 (CanLII); Lopez v. Canada (Citizenship and Immigration), 2014 FC 102 (CanLII); Sosa v. Canada (Citizenship and Immigration), 2014 FC 428 (CanLII); Sun v. Canada (Citizenship and Immigration), 2015 FC 387 (CanLII). 4 Hoballah, Hassane v. M.E.I. (F.C.T.D., No. IMM-3670-93), Joyal, January 10, 1995. 5 SPR-1, NDP on Haiti, July 31, 2017, Document 10.2. 6 Ibid. 7 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-01628 MB8-01629 10 RAD.25.02 (September 18, 2018) Disponible en français