MB8-05661

\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 : MB8-05661 MB8-05662 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision December 27, 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 Darius Constantin 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 is the mother and designated representative of XXXX XXXX XXXX. Ms. XXXX is a citizen of Haiti and her son is a citizen of the United States. They have appealed a decision of the Refugee Protection Division (RPD), rejecting their claim for refugee protection. In 2010, Ms. XXXX was active in a literacy group that supported the Organisation du peuple en lutte (OPL) political party. She alleged that, in December 2010, bandits who were affiliated with the Parti Haitien Tèt Kale (PHTK) broke into her familial home and vandalized it. She alleged that she sought refuge in another town before ultimately leaving Haiti for the United States in XXXX 2012. Her son was born in the United States and both the Appellants crossed the border into Canada in XXXX 2017. [2] The RPD found that the Appellants had not established that they are refugees or persons in need of protection. In particular, the RPD found that parts of Ms. XXXX testimony was not credible, namely her allegation that she sought refuge in a different town before leaving Haiti and her reasons for her failure to claim asylum in the United States. In addition to these credibility findings, the RPD found that Ms. XXXX allegation of a well-founded prospective fear of persecution was not credible. The Appellants appeal the RPD's credibility findings and its findings on the issue of prospective risk. [3] The determinative issue in this case is the issue of prospective risk if the Appellants were to return to Haiti. Therefore, I do not need to address the Appellants' arguments relating to the issue of credibility. Having conducted an independent assessment of the record, including the audio-recording of the hearing, I agree with the RPD's findings that the Appellants have not established a prospective risk of persecution if they were to return to Haiti today. ANALYSIS Determinative issue: no prospective risk of persecution upon return to Haiti [4] As set out below, I do not agree with the Appellants' arguments relating to the issue of prospective risk. I find no error with the RPD's conclusions and reasons on this issue and I concur with them. [5] The Appellants argue that the RPD erred by basing itself essentially on the passage of time and the absence of recent threats to find that the Appellants had not demonstrated the existence of a prospective risk of persecution if they were to return to Haiti. The Appellants seek to rely upon a document within the National Documentation Package for Haiti which states that there is no prescription period for revenge in Haiti and that there have been times when bandits will trace their victims several years later.1 [6] I do not agree with the Appellants' arguments. [7] I do not agree that the RPD erred in relying on the passage of time and the absence of recent threats against the Appellants. In my view, both of these factors are important factors in assessing the likelihood of prospective risk if the Appellants return to Haiti. Even accepting that bandits may track and seek revenge on individuals in Haiti several years later, there must be some evidence to show, on a balance of probabilities, that the bandits in any particular case have the interest and motivation to track down a particular victim. The RPD did not only rely on the absence of recent threats against the Appellants when assessing the likelihood that the bandits who vandalized Ms. XXXX house in 2010 would still have an interest in her. It also relied on Ms. XXXX testimony that the individuals who vandalized her house did not go after her mother who had been living with her and her cousin who they lived with after the break-in. While the Appellant testified that they did not know her mother or cousin, I agree with the RPD that one would expect that allegedly powerful individuals who could track her down across the country would have sought to find her sometime through her mother or her cousin. The RPD also relied upon the fact that the literacy group that Ms. XXXX in which she had been active no longer existed and all of the women who worked in it had dispersed. Finally, the RPD also noted that the candidate that Ms. XXXX group supported against the PHTK was also no longer an electoral candidate. [8] The only reason that Ms. XXXX gave for her belief that the individuals who vandalized her house in 2010 might still be interested in her seven years later was that the PHTK is still in power. Balancing this factor against all of the factors listed in the previous paragraph, I find that the RPD was correct to conclude that the Appellants failed to establish a serious possibility of persecution if they were to return to Haiti. They also failed to establish, on a balance of probabilities, that they would be personally subject to a danger of torture or a risk to their lives or a risk of cruel and unusual treatment or punishment if they were to return to Haiti. No serious possibility of persecution in Haiti [9] I note that the Appellants did not argue either before the RPD or in this appeal that Ms. XXXX faced a serious possibility of gender-related persecution if she were to return to Haiti. Nevertheless, in accordance with the Gender Guidelines2 and applicable case law, I have conducted an independent assessment of this issue. Having reviewed all of the evidence in the record, I find that the evidence does not establish that Ms. XXXX would face a serious possibility of gender-related persecution if she were to return to Haiti. Ms. XXXX provided no evidence at all to support a subjective fear of gender-related persecution. This alone is enough to find that the evidence does not establish a serious possibility of gender-related persecution.3 No risk to Ms. XXXX son in the United States [10] The Appellant did not contest the RPD's finding that Ms. XXXX son was not a Convention refugee or a person in need of protection with reference to the United States. I agree with the RPD's conclusion on this issue and its reasons for it and adopt them as my own.4 CONCLUSION [11] For these reasons, the appeal is dismissed. In accordance with paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection within the meaning of sections 96 and 97 of the IRPA. Jo-Anne Pickel Me Jo-Anne Pickel December 27, 2018 Date JP/bq 1 NDP for Haiti (October 20, 2017), Tab 7.3. 2 Immigration and Refugee Board Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution. 3 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. 4 RPD Decision paras. 10-13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB8-05661, MB8-05662 RAD.25.02 (September 18, 2018) Disponible en français 4 RAD.25.02 (September 18, 2018) Disponible en français