MB5-00516

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 : MB5-00516 MB5-00517 MB5-00518 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision August 5, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the persons who are the subjects of the appeal Me Claude Whalen Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX, his wife, XXXX XXXX XXXX, and their daughter, XXXX XXXX, all Haitian citizens, are appealing against the decision of the Refugee Protection Division (RPD), which rejected their claims for refugee protection. [2] The appellants have not presented any new evidence on appeal. They have also not asked that a hearing be held before the Refugee Appeal Division (RAD). [3] XXXX XXXX XXXX was appointed as the designated representative for her minor daughter XXXX XXXX, and this also extends to the RAD proceedings. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the appellants, XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX, are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [5] The appeal is dismissed. BACKGROUND [6] On XXXX XXXX, 2014, while her husband, the male appellant, was in the United States purchasing items for his business, XXXX XXXX XXXX was allegedly the victim of a breaking and entering at her home in Haiti, at which time masked criminals seeking money allegedly raped her. The female appellant allegedly went to the public prosecutor's office to obtain a justice of the peace and then allegedly filed a complaint with the police. The female appellant does not know who these criminals were. [7] When the male appellant returned a few days later, he allegedly saw that his business had been XXXX. He believes that it took place because of a political discussion that he had reportedly had. [8] Having lost his merchandise XXXX XXXX XXXX, the male appellant feared the pawnbrokers to whom he was indebted because he no longer had the means to repay them. They allegedly visited him three times between XXXX and XXXX 2014, threatening him so that he would pay back the loans. The male appellant allegedly managed to make them wait. [9] On XXXX XXXX, 2014, the appellants left Haiti, arrived in Canada on XXXX XXXX, 2014, and claimed refugee protection upon their arrival. [10] The appellants allegedly learned that on XXXX XXXX, 2014, one of the pawnbrokers went to their home and had asked to see the male appellant. [11] The female appellants fear that what happened at the time of the breaking and entering on XXXX XXXX, 2014, will happen again, and the male appellant fears mistreatment at the hands of the pawnbrokers, whom he was unable to reimburse. RPD DECISION [12] The RPD rejected the appellants' refugee protection claim because they were not credible with respect to their allegations and because the female appellants did not meet their burden of establishing a well-founded fear of persecution under section 96 by reason of their membership in a particular social group, namely, women in Haiti. [13] The RPD found that the appellants were not credible for the following reasons: - XXXX XXXX XXXX was not credible regarding the breaking and entering and rape incident, which she alleges she was subjected to on XXXX XXXX, 2014. The RPD drew a negative inference from a contradiction between her testimony and the medical document that she submitted into evidence and also from the fact that she never attempted to take cover by changing homes after this incident. - XXXX XXXXwas found not credible because he testified that he was threatened almost daily by the pawnbrokers once he returned from the United States on XXXX XXXX, 2014, while it was three times in his Basis of Claim Form (BOC Form). - The appellants were found not credible because despite their problems, they waited before applying for a visa for their daughter, a visa they applied for on XXXX XXXX, 2014. - Their delays in leaving the country, even though the adult appellants had valid visas for the United States, as well as the fact that they still continued to live at the same address, were factors from which the RPD drew negative inferences with respect to credibility. - The fact that the male appellant did not pay the pawnbrokers with the money collected from his close relatives was a factor from which the RPD drew a negative inference with respect to credibility and to the plausibility of the account. [14] The RPD also found that the female appellants had not established that their particular and personal circumstances were such that they would face a serious possibility of persecution by reason of their gender. GROUNDS OF APPEAL [15] Basically, the appellants contend that the RPD erred in finding that they were not credible and that the female appellant would not face a serious possibility of persecution, as a woman fearing rape, should she return to Haiti because, in their opinion, the appellants are credible and XXXX XXXX XXXX has already been sexually assaulted. [16] In the appellants' opinion, the RPD erred in the assessment of credibility. - The RPD should not have rejected the female appellant's medical document (see the RPD record) and not have drawn negative inferences from the fact that this document did not mention a knee injury. The RPD should have taken into account the fact that this document came from a gynecologist and that it was reasonable for her not to mention the injury. - The RPD erred in drawing negative inferences from the fact that the female appellant had not gone to live elsewhere after her assault, while her husband was still outside the country. The RPD should have considered the female appellant's explanation that some neighbours had come to stay with her for a few days. - The RPD should not have drawn a negative inference from the principal male appellant's failure to write in his BOC Form that he had been threatened almost daily by the pawnbrokers, because he had instead focused on the violent incidents. - The RPD erred by inferring that the delay in applying for a Canadian visa for their daughter appellant was a factor that undermined their credibility. - The RPD erred in finding it implausible that the appellants continued to live in the same home in XXXX XXXX XXXX until their departure, even though their lives were in danger. The RPD should have accepted their explanations that wherever they went, they would be in danger. - The RPD erred in rejecting the appellants' explanations that they were unable to leave the country until XXXX XXXX, 2014, because they did not have the financial means to do so, and in drawing negative inferences from this delay in leaving their country. THE RAD'S ROLE [17] The RAD is a newly constituted appeal tribunal for RPD decisions, whose role remains to be clarified. The IRPA does not explicitly set out the standard of review and intervention to be applied when RPD decisions are appealed. [18] To date, Federal Court decisions have established that the RAD is "a specialized (if not overspecialized) tribunal" (see Alvarez1) and that Parliament has conferred "a true appellate function" on the RAD, "which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [19] In Alvarez,2 the Honourable Justice Shore states that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner". The appeals are not de novo, and the RAD can hold a hearing only if new evidence is presented pursuant to subsections 110(3), 110(4) and 110(6) of the IRPA, thus limiting the scope of the appeal that the IRPA confers on the RAD. Moreover, this is not a judicial review whose sole purpose is to determine whether the RPD's decision was reasonable. [20] In Eng,3 Justice Shore is of the opinion that although the RAD must show a measure of deference to the RPD, the tribunal of first instance, with regard to findings of fact, as the RPD is better situated, having seen and heard the claimant, the RAD must nonetheless perform its own assessment of all the evidence to determine "whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error" (Eng4). [21] In Huruglica, Justice Phelan states that "[i]n conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion". [22] Thus, Huruglica recommends an approach where deference must be given to the RPD with regard to the assessment of credibility, while performing an independent assessment of credibility without limiting itself to "palpable or overriding error." With respect to the assessment of the documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."5 [23] In Spasoja, subsequent to Huruglica, the Honourable Justice Roy gives a different view from that of the Honourable Justice Phelan in Huruglica. He states that the standard of review for the RAD must be the standard of "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's credibility findings, and that for questions of law, the standard of correctness should apply. This conclusion is consistent with Alvarez and Eng. [24] In Alyafi,6 Justice Martineau is of the opinion that both positions, the first set out in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as "a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal" (Alyafi, para. 16) can both be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [25] To me, it appears that the RAD must defer to the RPD with respect to its credibility findings, in keeping with the decision in Huruglica, given that the RPD has had the opportunity to see, question and hear the appellant. [26] In its assessment, the RAD will consider all the evidence, including the appellant's testimony, and will carry out its own assessment while deferring to the RPD with respect to questions of credibility. [27] The RAD will intervene only if it finds that the RPD's findings regarding questions of fact or mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. The standard of review that the RAD will apply with respect to errors of law is that of correctness (Spasoja).7 ANALYSIS [28] The RAD has reviewed the appellants' and the RPD's record, all the documentary evidence and recordings of their hearing before the RPD. [29] In light of the evidence on the record, the RAD is of the opinion that the RPD did not err. [30] The female appellant testified that she sustained a serious leg injury inflicted by the criminals, who allegedly brandished their knives at the time of the incident on XXXX XXXX, 2014. This resulted in the female appellant allegedly sustaining a deep cut on her leg, which, she testified, left a visible scar. [31] The following day, the female appellant allegedly went to see a doctor (this visit is not in the BOC Form) who allegedly wrote her a medical certificate (see the RPD record, page 469). The diagnosis on this certificate does not indicate that the female appellant sustained a knee injury. It appears that, according to the medical certificate, this examination was carried out as part of a general consultation at the XXXX XXXX XXXX XXXX [state university hospital of Haiti] the day after the incident on XXXX XXXX, 2014. [32] In the circumstances and contrary to the appellants' arguments, although the doctor was a gynecologist, it appears unlikely that in a general examination (the female appellant did not testify that this was a gynecological examination), the doctor would have failed to mention a visible and considerable injury that had specifically been the basis for the consultation, as it was one of the reasons she went for the consultation (see the RPD book, BOC Form, page 57). It is entirely consistent that an allusion to this injury should have been on this medical certificate. That this injury is not mentioned on it fundamentally undermines the appellants' credibility with respect to this incident in the RAD's view. [33] The RPD did not err. [34] The female appellant was questioned as to why, after the incident on XXXX XXXX, 2014, she had not sought refuge elsewhere. [35] It took her a few times and a few answers before she stated that some neighbours had come and slept at her place. At first, she answered that following the incident she no longer felt like herself, that she was really upset and that nothing made any sense to her anymore. To a question asked by the RPD ([translation] "Could you not go and stay with your family?"), the female appellant answered that it was not safe anywhere. [36] The account in the BOC Form demonstrates that on XXXX XXXX, the female appellant took a number of steps, including a trip to the peace tribunal, that she then went to file a complaint with the police, and that she bought a chip so that she could call her husband, which she did. She then allegedly went to the hospital, where she apparently spent the entire day, from 9:00 am to 6:00 pm. [37] Consequently, in the RAD's opinion, the explanations that the female appellant was not feeling like herself and was really upset are not credible, because she allegedly took various steps that demonstrate that she made sense of time and place, that she was not overcome by her emotions and that rational thought prevailed because she went to a number of places in order to find a solution to her problems, taking steps regarding her complaint (the female appellant did not produce a copy of this complaint into evidence). Since she was able to travel and had her wits about her enough to go and take these steps, the RAD finds that it is not credible that the female appellants, once the principal female appellant left the hospital on XXXX XXXX, 2014, had not thought or wanted to go hide somewhere else, thus protecting her children and herself, and escaping violence and this ransacked place where the incident had transpired, whether neighbours had come or not. [38] The RAD draws a negative inference regarding the credibility of this incident on XXXX XXXX, 2014. The RAD did not believe it. In its opinion, the RPD did not err in this matter. [39] The RAD is also of the opinion that the RPD was right to find that it was unlikely, in the circumstances alleged by the appellants, that the pawnbrokers threatened the male appellant almost daily and that they did not attempt to seek cover and continued to live at the same place. The explanations that it was of no use to do so because they would have found them elsewhere seems inconsistent and implausible to the RAD. [40] In a country such as Haiti where, according to the documentary evidence (see the RPD record, national documentation package, pages 100 to 134), there are high rates of violence and organized crime in relation to the overall poverty and social problems that stem from them, it is easy to believe that if the male appellant had really taken out a usurious loan with criminals and had defaulted on a $XXXX payment, a considerable amount in a country lacking resources like Haiti, in light of the threats that he states he received, the male appellant would have been in a hurry to put his family in a place other than at his home so that it would be more difficult to find them. The RAD did not believe the male appellant's explanation that they would have been found wherever they went. Logically, the risk would be much higher if the appellants stayed in the same place, especially because the pawnbrokers had come to their home. [41] Moreover, the appellants did not write that they had been threatened almost daily by the pawnbrokers in their BOC Form. The male appellant explained that this was a mistake. [42] The arguments in the appellants' memorandum (appellants' record, page 12) that they focused only on the violent incidents cannot be accepted, as they did not testify to this before the RPD. [43] The RAD is of the opinion that this omission is significant and that if the appellants really had received daily threats in relation to these loans, this would have been indicated in their BOC Form. [44] The RPD did not err; the RAD finds that the appellants are not credible in this matter and that there was no unpaid usurious loan or resulting threats. [45] Lastly, the RPD did not believe that the appellants' business had been XXXX on XXXX XXXX, 2014, because the appellants waited a number of months before leaving the country on XXXX XXXX, 2014. [46] It should be noted that XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX had valid American visas. They also had valid Canadian visas-the female appellant since XXXX 2014 and the male appellant since XXXX 2012. [47] In the circumstances, why did they not apply for a visa for the female appellant, XXXX XXXX, until XXXX XXXX, 2014? The appellants stated that it was an issue of financial resources. The RAD rejects this explanation, not believing, as was previously explained, the assault on XXXX XXXX, 2014; the loans taken out; the resulting threats; or the XXXX business. As the male appellant stated that he was able to collect some funds through his close relatives-and on this point, he did not express anything to indicate that he encountered any obstacles-the RAD is of the opinion that funds could have been used before the XXXX XXXX XXXX2014 to take steps toward a Canadian visa. The RPD did not err in its assessment of the credibility on this point. [48] That being said, could the female appellants have a well-founded fear of persecution by reason of their gender, should they return to Haiti? [49] The RPD concluded no because they had not shown that their personal characteristics put them at risk of being raped under section 96 of the IRPA. [50] The female appellants are of the opinion, in their memorandum, that they credibly demonstrated that in the context in which they live and that of their personal situation, they face a serious possibility of persecution by reason of their gender. [51] It is unnecessary to demonstrate past persecution in order to establish a prospective fear of persecution. This is a line well established by the Canadian case law in the matter. [52] The fear expressed by the female appellants is that at any time, because of the general insecurity in Haiti, they could again fall victim to violence like that on XXXX XXXX, 2014. The truthfulness of this incident was not established by the female appellants. Consequently, the RAD is of the opinion that, prospectively, despite the fact that women in Haiti can be the subject of physical, sexual and psychological violence (see the RPD record, pages 13 to 45), the female appellants did not establish that the context in which they live and their personal situation are such that they have a well-founded fear of persecution by reason of their gender. The female appellants are members of a family, are not alone and benefit from the presence of XXXX XXXX. They lived in a house, and this house still exists according to the BOC Form (see RPD record, BOC Form page 58). They did not establish that they would return to vulnerable conditions such that they would be at risk as women or would face a serious possibility of being persecuted there. [53] Given that the negative inferences regarding credibility drawn by the RPD are, in the RAD's opinion, crucial and determinative in the female appellant's account and that the female appellants failed to establish that they had a well-founded fear of persecution by reason of their gender, the RAD is of the opinion that the RPD rendered the correct decision and did not err. REMEDY [54] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [55] The appeal is dismissed. Roxane Cyr Roxane Cyr August 5, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, para. 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-00516 MB5-00517 MB5-00518 12