MC0-00383

RAD File / Dossier de la SAR : MC0-00383 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision April 29, 2021 Date de la décision Panel Me Reisa Khalifa Tribunal Counsel for the person who is the subject of the appeal Maria Esposito Conseil de la personne 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 (Appellant), citizen of Haiti, is appealing the negative decision rendered in her case by the Refugee Protection Division (RPD) on December 6, 2019. [2] The determinative issues for the RPD were a lack of prospective risk that was personal to the Appellant under s 97(1); lack of objective basis for subjective fear on a Convention ground under s 96; a negative credibility finding regarding one of the core incidents alleged; and a lack of subjective fear based on the family's failure to relocate and an absence of incidents since April 2018. [3] The Appellant argues that the RPD erred in its findings because the Appellant had provided credible evidence that the various incidents involving bandits were linked by a common factor of the Appellant's family being targeted; that the Appellant had a particular fear as a woman that she would be targeted by bandits to extort money from her family; and that the RPD erred in not considering the lack of state protection and the absence of an internal flight alternative (IFA) in determining the prospective risk of the Appellant. [4] I find that the RPD did not err in its findings regarding a lack of prospective risk that is personal to the Appellant under s 97(1) or regarding a lack of objective basis for a subjective fear on a Convention ground under s 96. I also find that the RPD did not err in omitting a state protection analysis and IFA analysis in its decision, as it was not required to do so based on its correct findings regarding the claim under both s 97(1) and s 96 analyses. [5] While I find that the RPD erred in its negative credibility finding that the alleged June 2017 incident did not take place at all, I find that it did not err in its finding that the Appellant did not prove that she is being personally targeted through this incident. This is because I find that the Appellant's explanation regarding the omission from her testimony about the bandits referring to her name and her family during the June 2017 incident was not satisfactory. [6] I also find that the RPD erred in awarding no probative value to exhibit P-6, which documented the incident where her father had gone to the police after being threatened in April 2018, and that the RPD erred in finding that the Appellant lacked subjective fear based on the failure of her family to relocate or on the absence of incidents since April 2018. [7] I find that the absence of incidents in Haiti against the family since April 2018, despite their remaining at the same address, militates against the establishment of prospective risk for the Appellant regarding her stated fears that her family has been targeted. [8] When considering the evidence, I find that the errors of the RPD did not lead to an error in the determinative issues of the appeal. I find that the RPD was correct in determining that the Appellant did not establish on the balance of probabilities, a prospective risk that is personal to her under s 97(1) and in concluding that the Appellant had not established that there was an objective basis for her subjective fear on a Convention ground under s 96. I therefore maintain the decision of the RPD. DECISION [9] The appeal is dismissed. I confirm the RPD decision that the Appellant is neither a Convention refugee under s 96, nor a person in need of protection under s 97(1) of the Immigration and Refugee Protection Act (IRPA). NEW EVIDENCE [10] The Appellant submitted no new evidence. [11] As no new evidence has been submitted, there will not be an oral hearing under s 110(6) as requested by the Appellant. ROLE OF THE RAD [12] When reviewing the RPD decision, I independently assessed the evidence, including listening to the recording and reading the transcript of the RPD hearing of September 20, 2019, to determine whether or not the RPD was correct in relation to each alleged error of law, of fact, or of mixed law and fact. Analysis of RPD's Findings Lack of prospective risk that is personal under s 97(1)/Lack of objective basis for subjective fear under s 96 [13] The RPD found that the incidents alleged by the Appellant were random acts of violence that did not appear to be linked to one another or directed at her specifically. [14] The RPD therefore found that the Appellant did not establish, on the balance of probabilities, that she faces a risk that is personal and one that is not generally faced by others under s 97(1). Specifically, the RPD found that she did not establish that she had been personally targeted in the May 11, 2011, incident when bandits robbed her father's store; that the Appellant did not establish that there was a link between the killing of her cousin by bandits on November 6, 2014, and a threat to her personally; that the Appellant did not establish that the robbery in February 2015 of herself, her sisters and her parents was directed at her personally. Furthermore, the RPD found that the incidents of May 2011, November 2014 and February 2015 did not establish that the Appellant faces the serious possibility of persecution as the member of a particular social group, women who fear gender-based violence in Haiti, under s 96. [15] The Appellant argues that she had provided credible testimony that she had been personally targeted and feared being kidnapped or raped as a woman in order for the bandits to put pressure on her family to give them money, and that her testimony about the widespread criminality in Haiti, proven by the various incidents to which she had testified had happened to her and her family, substantiated her subjective fear as a personal target and as a woman. [16] While the Appellant did consistently express her subjective fear of being kidnapped or raped by bandits, both in her BOC narrative and in her testimony, and the widespread criminality in Haiti is extensively documented in the objective documentary evidence, in order for the Appellant to face the serious possibility of persecution as the member of a particular social group, namely women who fear gender-based violence, the Appellant has to demonstrate that in her particular case, there are specific elements that would make her vulnerable to this type of violence. It is not enough for her to allege the fear as a woman, she must demonstrate what it is about her particular situation that creates the serious possibility of persecution on this basis, if she were to return to Haiti. As indicated in Guideline 4-Women Refugee Claimants Fearing Gender-Related Persecution, "...the evidence must show that what the claimant genuinely fears is persecution for a Convention reason as distinguished from random violence or random criminal activity perpetrated against her as an individual"1. I find that the Appellant has failed to do so, and that she has therefore not established an objective basis for her subjective fear of a serious possibility of persecution under s 96. Moreover, I have considered whether or not the Appellant has a particular profile that would be the basis for forward-facing harm based on her gender. While I am aware of the serious problems that are documented in the country conditions with respect to gender-based violence against women in Haiti2, I do not find that the established facts in the Appellant's situation creates the serious possibility of persecution on that basis, either based on past credible allegations of sexual violence or domestic violence, which could lead to a greater chance of re-victimization, or her family situation, such as current domestic violence or forced marriage, or her socio-economic situation, such as being homeless or a single woman without family support. The Appellant has not put forward any evidence to suggest these scenarios, or any others, that in consideration of country conditions would put her in a situation of particular vulnerability as a woman in Haiti. [17] I also find that the Appellant has not established, on the balance of probabilities, that she faces a risk that is personal and one that is not generally faced by others, under s 97(1). I find that the Appellant did not put forth credible evidence that the various incidents she alleged were anything more than random acts of violence, and that she had been personally targeted. [18] I therefore do not find that the RPD erred in determining that the incidents of May 2011, November 2014 and February 2015 were not shown by the Appellant to have targeted her personally or to be connected to her gender as a woman. The May 2011 incident involved the robbery of her father's store; the November 2014 incident involved the shooting death of her male cousin; and the February 2015 incident involved the robbery of the Appellant, her parents and her sisters. There was no evidence put forward that, on the balance of probabilities, these incidents were targeting the Appellant personally in accordance with s 97(1), or that they were the basis for the Appellant to face the serious possibility of persecution based on her gender under s 96. There was also no evidence put forward that these incidents were linked. The Appellant several times expressed the fear that perhaps the incidents were linked and that she feared that she might be kidnapped by bandits to get money from her family, but the Appellant did not put forth proof of any attempts at kidnapping or threats to do so, and she also declared several times that she did not know who the bandits were and if the incidents had been connected3. I therefore find that the Appellant has not met her standard of proof, either for a s 96 or s 97(1) claim, based on the incidents of May 2011, November 2014 and February 2015. Lack of prospective harm and subjective fear under s 96 [19] Furthermore, the RPD noted that the Appellant had testified that there had been no incidents or threats against her or her family since April 2018; that her parents and one of her sisters live at the same address in Croix-des-Bouquets where they had lived during the alleged incidents; and that the father of the Appellant still has a business in Port-au-Prince; the RPD found that this indicated a lack of prospective harm for the Appellant and a lack of subjective fear, under s 96. [20] The Appellant did not contest the RPD's statement of facts that the family had not relocated and still lives at the same address in Croix-des-Bouquets where they had lived when the alleged incidents took place; that the Appellant's father continues to run his business in Port-au-Prince; or that there have been no incidents or threats by the bandits since April 2018. [21] Although the Appellant testified during the RPD hearing of September 20, 2019, that her father still receives threats from bandits in Haiti, she also testified that there had been no incidents since April 20184 and the document to which she was referring during her testimony on this point pertained to incidents in April 20185. [22] I find that the uncontested facts regarding the failure of the Appellant's family to relocate and that they still live at the same address they did throughout the incidents, the fact that the Appellant's father still has his business in Port-au-Prince and the fact that there have been no incidents since April 2018, contribute to the correct finding of the RPD that the Appellant does not face a prospective risk if she were to return to Haiti. I find that the RPD did err in concluding that the Appellant lacks a subjective fear based on her family's failure to relocate or her father's failure to relocate his business, as the subjective fear to be assessed should be limited to the behaviour of the Appellant. However, because the Appellant repeatedly states that she fears the incidents in which her family has been targeted represent a danger to her, I find that the lack of incidents since April 2018, despite her family having remained in the same location and her father having his business at the same location, demonstrates a lack of objective basis for her subjective fear under s 96 and a lack of prospective risk under s 97(1). Not credible regarding alleged incident of June 2017 [23] The RPD found that the Appellant was not credible in her allegation that an incident which occurred in June 2017 during which she was personally targeted by bandits who followed her to school, asked her about her family and asked for her name, then stole her bag, due to the omission from her testimony of the written allegations in the BOC narrative that the bandits had asked about her family and asked about her name. In reply to the question of why this had been omitted, the Appellant answered that it was not because she had not remembered this information, but that she had not realized that she had left this information out when she was testifying about the incident. The RPD found that her explanation for the omission was unreasonable, as she had been given several opportunities during the hearing when asked if the bandits had said anything else. [24] The Appellant argues that she had provided an explanation regarding this omission in her testimony, which was repeated in the Appellant's arguments, and that the RPD had erred in its negative credibility finding in this regard. [25] I find that the explanation of the Appellant regarding her omission in her testimony was not satisfactory, given that she had been given several opportunities during the hearing to provide this information, when she was asked if the bandits had said anything else, and she failed to do so, until she had been confronted about the omission. [26] While I don't find the explanation regarding the omission from her testimony to be satisfactory, I do find that there was a substantial similarity between the BOC narrative and the Appellant's testimony regarding the June 2017 incident, such that she established on the balance of probabilities that an incident took place in June 2017 where she was robbed outside her school. Based on the unsatisfactory explanation by the Appellant regarding the omission, I do not find that the Appellant established on the balance of probabilities, that the bandits who robbed her actually asked about her family and identified her by name. [27] I therefore consider that the RPD erred in finding that the entirety of the June 2017 incident was not credible, and I find that there was an incident during which the Appellant was robbed in June 2017 outside her school. However, the Appellant did not establish on the balance of probabilities that the bandits had asked her about her name or her family connection, such that she did not meet her standard of proof that this incident was targeting her personally or part of a series of events where she was the target, or that this would be a basis for the serious possibility of persecution based on her membership in a particular social group of women who fear gender-based violence. No probative value to P-6 [28] The RPD found that because the family had not relocated, and the father continued to do business at his store in Port-au-Prince, it gave no probative value to exhibit P-6 that documented the threats her father had reported to the police in April 2018. [29] The Appellant argues that the RPD erred in awarding no probative value to P-6, as this was corroborative proof that was invalidly dismissed. [30] I find that the RPD erred in awarding no probative value to P-6, based on its findings that the Appellant lacked a subjective fear due to her family's having remained at the same address, her father remaining at same business location and no incidents alleged since April 2018. As discussed above, although I find that this set of facts leads to the conclusion that there is a lack of prospective harm for the Appellant, I do not find that these facts either call into question the authenticity of the document or its relevance, which are the factors in the probative value of an exhibit. I therefore find that P-6, which is an extract of minutes of a declaration by the Appellant's father to police of threats he received by text message in April 2018, has probative value for the purpose of establishing that he was threatened in April 2018. However, I do not find that it has probative value for the purpose of establishing that the Appellant herself was threatened or faces a prospective harm, since her family has had no problems since April 2018, despite having remained at the same address. I therefore do not attribute it any weight in establishing that the Appellant faces a prospective risk. I therefore find that this error of the RPD does not create an error in its conclusions regarding the determinative issues of the appeal. Failure to assess state protection and IFA [31] The Appellant also argues that the RPD erred in not assessing the availability of state protection in Haiti or a viable IFA in Haiti, before reaching its conclusion. [32] I find that the RPD did not err in omitting a state protection analysis and IFA analysis in its decision, as it was not required to do so based on its correct findings regarding the claim under both s 97(1) and s 96 analyses. Exhibits produced by appellant but not addressed in RPD decision [33] Exhibits P-1 - P-4 and P-76 make proof of the birth, death and occupation of the Appellant's cousin. They have probative value for the allegations pertaining to the cousin and his death in November 2014. [34] Exhibits P-5 and P-8 make proof of the break-in and robbery of the Appellant's father's store in May 2011, and his ownership of the store. They have probative value for the allegations pertaining to this incident. [35] These exhibits make no mention of the Appellant and do not further the allegations of the Appellant as to a risk to her life that is personal or the serious possibility of persecution on a Convention ground. The Appellant has not established that on the balance of probabilities, these events are, either individually or in combination with other events, linked to her in some way. P-5 and P-6 therefore do not have probative value for the purpose of establishing that she has been personally targeted or would face gender-based persecution in the future. Conclusion on RPD's determinative issues [36] After my independent assessment of the evidence, for all of the above reasons, I therefore find that, despite some errors by the RPD, these errors were not such that it caused an error in the RPD's conclusions on the determinative issues. [37] Although the RPD erred in concluding that the Appellant lacks a subjective fear based on her family's failure to relocate or her father's failure to relocate his business, as the subjective fear to be assessed should be limited to the behaviour of the Appellant; the RPD erred in finding that the entirety of the June 2017 incident was not credible; and the RPD erred in awarding no probative value to P-6; these errors do not cause the RPD's conclusions on the determinative issues to be incorrect. [38] I find that the Appellant has not established, on the balance of probabilities, that she faces a risk that is personal and one that is not generally faced by others, under s 97(1), or that there is an objective basis for her subjective fear of a serious possibility of persecution under s 96. The RPD was correct in determining that the incidents of May 2011, November 2014 and February 2015 were not shown by the Appellant to have targeted her personally or to be connected to her gender as a woman. The RPD was correct that the Appellant did not establish on the balance of probabilities that these incidents were linked. The RPD was also correct that the lack of incidents since April 2018, despite the Appellant's family having remained in the same location and the father having his business at the same location, demonstrates a lack of objective basis for her subjective fear under s 96 and a lack of prospective risk under s 97(1). I find that the Appellant did not meet her standard of proof that the June 2017 incident was targeting her personally or part of a series of events where she was the target, or that this would be a basis for the serious possibility of persecution based on her membership in a particular social group of women who fear gender-based violence. Finally, while P-6 has probative value for the purpose of establishing threats in April 2018 to the Appellant's father, I do not find that it has probative value for the purpose of establishing that the Appellant herself was threatened or faces a prospective harm, therefore I do not attribute it any weight in that regard. DETERMINATION [39] The appeal is dismissed. I confirm the RPD decision that the Appellant is neither a Convention refugee under s 96, nor a person in need of protection under s 97(1), of the Immigration and Refugee Protection Act (IRPA). (signed) Reisa Khalifa Me Reisa Khalifa April 29, 2021 Date RK/in 1 Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective date: November 13, 1996, section C, introductory paragraph. 2 RAD-2, National Documentation Package for Haiti, 16 April 2021 : Tabs 5.1, 5.3, 5.4, 5.5, 5.8, 5.10, 5.11, 5.12, 5.15, 5.16. 3 RAD-1, Transcript of RPD hearing of September 20, 2019: page 9, lines 41-42; page 10, line 5. 4 RAD-1, Transcript of RPD hearing of September 20, 2019: page 6, line 4. 5 RAD-1, Transcript of RPD hearing of September 20, 2019: page 5, lines 16-39. 6 RPD-1, RPD Record, Document 4- Exhibit P-1: Birth certificate of cousin; P-2: Letter of invitation to cousin; P-3: Letter of employment of cousin; P-4: Act of death of cousin; P-7: News article regarding cousin. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-00383 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