MB9-30255

RAD File No. / No de dossier de la SAR : MB9-30255 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 Montréal, Quebec Appel instruit / entendu à Date of decision November 23, 2020 Date de la décision Panel Guerlain Guerrier Tribunal Counsel for the person who is the subject of the appeal François Dostaler 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] The appellant, XXXX XXXX, is a citizen of the Republic of Haiti. She had a successful business in Port-au-Prince, but her store was vandalized on XXXX XXXX XXXX 2008, by criminals who demanded money from her. Another time, on XXXX XXXX, 2009, criminals allegedly robbed and raped her. The appellant fears being kidnapped or killed if she returns to Haiti due to the endemic insecurity in that country. [2] Feeling humiliated and threatened, the appellant left Haiti for the United States on XXXX XXXX XXXX 2010. Fearing deportation and the policies of the current administration, the appellant came to Canada to claim refugee protection on XXXX XXXX, 2017. [3] The Refugee Protection Division (RPD) focused on the appellant's credibility during the hearing and found that there were major contradictions between her testimony and her written account. There were also contradictions between the testimony and the documentary evidence submitted by the appellant. The RPD also noted that the appellant did not leave her country at the first opportunity. Furthermore, the RPD found that the appellant's failure to claim asylum or regularize her status in the United States undermined her credibility. The RPD concluded that the appellant failed to establish her allegations and that there was no serious possibility that she would face gender-related persecution if she returned to Haiti. [4] The appellant is of the opinion that the RPD erred in its assessment of her credibility. The contradictions raised by the RPD were minor and had been explained. This should not have undermined her credibility. The appellant stated that the RPD erred in concluding that she would not face a risk of persecution by reason of her particular social group if she returned to Haiti. She argued that the RPD failed to consider the ample documentary evidence on the treatment of women in Haiti. [5] The determinative issues for the Refugee Appeal Division (RAD) are whether the RPD erred in assessing the appellant's credibility and in analyzing the serious possibility of persecution by reason of her membership in the particular social group of women. DETERMINATION [6] I dismiss the appeal. The RPD correctly determined that XXXX XXXX is neither a refugee within the meaning of the United Nations Convention relating to the Status of Refugees (the Convention) nor a person in need of protection. ANALYSIS [7] My role is to review all the evidence and to determine whether the RPD decision is correct.1 Failure to apply for asylum in the United States [8] The RPD found that the appellant's failure to apply for asylum in the United States, when she had lived in that country for more than seven years, undermined her credibility as this behaviour is not consistent with that of a person who fears for their life in their country of citizenship. [9] The appellant argued that she was not required to apply for asylum in the first where she arrived. Citing case law,2 the appellant pointed out that the delay in claiming refugee status or the failure to apply for asylum in another country are relevant factors to consider, but they are not determinative. The appellant argued that the RPD erred in requiring her to apply for asylum in the first country in which she stayed. [10] While the appellant's submission regarding the case law is true, it is not responsive to the RPD's finding that failing to claim asylum undermines the credibility of her allegations. The RPD did not conclude that it was the determinative ground in this case. In my opinion, it is undeniable that a person who fears for her life and who alleges persecution in her country, but who also settles in a country that has signed the Convention without applying for asylum or attempting to regularize her status there, exhibits behaviour inconsistent with the alleged fear, even if it is not determinative. [11] The appellant also mentioned that she had been granted a Temporary Protected Status (TPS) to stay in the United States. This status requires Haitian nationals to return to their country once the effects of the January 2010 earthquake have been sufficiently remedied. Yet the appellant did not allege that she had fled her country due to the destruction of infrastructure. This precarious status in no way protects her from a possible return to Haiti and to the persecution she alleged to have fled. In spite of the TPS, her behaviour was not consistent with the alleged fear. [12] The appellant also referred to a policy change in the United States following the 2016 presidential election, but she had been living in that country since 2010. The presidential election took place in November 2016. [13] I find that the appellant's credibility is largely undermined by her failure to apply for asylum in the United States. The RPD's conclusion is correct. Events of XXXX XXXX XXXX 2008 [14] The RPD noted a contradiction that it considered significant between the appellant's testimony and the minutes issued by the Croix-des-Bouquets tribunal. The minutes state that the thieves were masked. Yet the appellant testified that their faces were uncovered and that she would be able to identify them. [15] The appellant explained that it was actually the criminals who attacked her on XXXX XXXX, 2009, who were masked. She argued that the RPD should not have drawn a negative inference regarding her credibility since it is not a significant contradiction. [16] I agree with the RPD that the appellant's explanation is not satisfactory. By stating that the criminals who attacked her in XXXX 2009 were the ones who were masked, the appellant still maintains that the criminals from XXXX XXXX XXXX 2008, were not masked. This contradicts what is written in the minutes she provided. The assault reportedly took place at around XXXX p.m., and the minutes were drafted one hour later, on the same day. The incidents were fresh in the appellant's mind when she made her declaration before the justice of the peace, and it was not possible at that time for her to be confused with another assault that would not happen until several months later. Referring to the attack of 2009 therefore does not explain the contradiction. [17] In addition to the contradiction on the wearing of masks, I note that the appellant stated that she would be able to identify the thieves from XXXX XXXX, 2008. This is another much more substantial claim which also contradicts the documentary evidence3 she submitted. [18] I am of the opinion that this contradiction is significant. The identity of the agents of persecution is important. The fact that they were wearing masks shows premeditation. All of this relates to an event central to the refugee protection claim. This contradiction undermines the appellant's credibility. I do not see any errors in the RPD's conclusion. Incident of XXXX XXXX, 2009 [19] According to the appellant's initial written account, she was raped by the leader of a gang of criminals. Yet she declared before the justice of the peace that she had been raped by several assailants. The RPD noted that the appellant presented an amended written account with no modifications to this allegation. The appellant also did not wish to correct her written account at the start of the hearing, confirming instead that all the information in her forms was complete, true and correct. The RPD was of the opinion that this was another significant contradiction involving an element central to the written account. This contradiction undermines the appellant's credibility. [20] The appellant explained that, rather than focusing on the magnitude of the crime in her written account, she preferred disclosing all the details to the member at the hearing. It is not easy for her to testify about such heinous acts. The appellant added that her written account was translated by an interpreter and that she was ashamed to reveal to him that she had been raped by several men. The appellant also stated that, when she was given the opportunity to correct her written account at the start of the hearing, she did not expect the changes to pertain to this specific aspect of her written account. [21] I do not accept these explanations. [22] The refugee protection forms have the same force and effect as a declaration made under oath. This is specified in the very place where the appellant added her signature.4 The appellant was represented by legal counsel when her forms were signed and at the hearing. She had the opportunity to find out about her legal obligations and to discuss with him her reservations and the appropriate time to disclose her written account. [23] At the start of the hearing, the appellant swore that everything she was going to say would be true. A few moments later, the matter of her allegations being complete, true and correct was raised when the appellant was before the member. When she was given the opportunity to amend her written account, she did not change this element. At that time, there was no longer an intermediary for the appellant to feel uncomfortable about. Yet she reiterated that her account was complete, true and correct. [24] I am of the opinion that the appellant adjusted her testimony when she was confronted about the contradiction. This significant contradiction undermines her credibility. The RPD's conclusion is correct. Medical certificate [25] In the medical certificate the appellant submitted, the physician indicated the following: [translation] "Based on the story told, the patient, XXXX XXXX, was allegedly the victim of rape by unidentified individuals." The RPD concluded that the certificate did not establish the physician's finding, but rather the appellant's statement. Still according to the RPD, the certificate includes a vague diagnosis which does not establish that the appellant had actually been raped. The certificate lists only two symptoms: [translation] "fever" and "severe pain." [26] The appellant argued that the RPD erred in giving no weight to the medical certificate. She claimed that the physician did not know the context of the assault, which is why he wrote [translation] "based on the story told." She did not sustain physical injuries after the sexual assault, but it did result in severe pain. The appellant was of the opinion that the RPD did not have substantive grounds to reject this evidence. [27] I conducted my own evaluation of the certificate. The certificate the appellant presented does not include the physician's independent diagnosis. Next to the final diagnosis he wrote "Idem" which, in my opinion, makes reference to the rape described by the appellant. He does not certify as an expert that the appellant had been raped. I do not accept the appellant's explanation that the certificate was worded as such because the physician did not know the [translation] "context." A medical professional does not need to understand the context to conclude through their expertise that an individual has been raped. I note that he did not do so in this case. [28] I also note a contradiction between the medical certificate and the minutes of XXXX XXXX, 2009. The certificate clearly states that a medical examination took place at the "XXXX XXXX XXXX XXXX" [XXXX XXXX XXXX] on XXXX XXXX XXXX 2009. Yet according to the appellant's declaration before the justice of the peace, she went to the hospital for an examination on XXXX XXXX. To explain this contradiction, the appellant stated that she was given an appointment on XXXX XXXX to collect the medical certificate. [29] I am of the opinion that it is not impossible that an error was made regarding the date of the examination. However, it is surprising that a rape victim was asked to return to the hospital the day after the examination just to collect the physician's note, especially since the certificate indicates that the victim suffers from severe pain. Based on the evidence before me, I cannot conclude one way or another. [30] However, the contradiction regarding the date of the examination, the absence of an official diagnosis by the physician, and the generic nature of the symptoms described lead me to give little weight to the medical certificate submitted by the appellant. The RPD's conclusion regarding this document is correct. Reason for leaving Haiti [31] The appellant did not leave her country immediately after the alleged rape. She left in XXXX 2010. The appellant testified that she had decided to leave her country after the January 2010 earthquake for two reasons: she had nowhere to live and criminals were raping people who lived in tents. [32] The RPD did not accept the appellant's explanations. The RPD noted that the appellant had a valid visa for the United States. The RPD found that the delay in leaving Haiti undermined the appellant's credibility with respect to her subjective fear. [33] The appellant did not present any arguments to contest this finding. [34] I do not see any errors in the RPD's analysis. I am of the opinion that its finding is correct. [35] The appellant's credibility was undermined by her delay in leaving Haiti when she had the opportunity to do so, by her failure to apply for asylum in the United States, by the contradictions between her testimony and the documentary evidence she submitted, and by the contradiction between the minutes of XXXX XXXX, 2009, and the medical certificate. [36] For these reasons, I conclude that the appellant failed to establish her allegations. Particular social group of women [37] The RPD was of the opinion that, while the appellant's situation would not be easy if she returned to Haiti, she would not face a serious possibility of persecution. It concluded that she failed to demonstrate that there is a serious possibility that her life would be at risk by reason of her gender or membership in a particular social group of [translation] "women who fear violence in Haiti." [38] The appellant claimed that the RPD erred in concluding that she would not face a risk of persecution by reason of her particular social group. She argued that the RPD did not correctly apply Guideline 4 in relation to the fears she expressed since it opted to assess her ability to find employment or housing rather than focus on the matter of rape. Even if the RPD doubted that the alleged rape had indeed occurred, it still had to assess the risk of rape since women in similar situations are victims of it in Haiti. Furthermore, the Haitian state is unable to protect the appellant. [39] According to Chairperson's Guideline 4,5 women may form a particular social group within the refugee definition. The Guideline sets out the proper framework of analysis for refugee claims based on gender-related persecution by reason of one of the enumerated grounds in section 96 of the Immigration and Refugee Protection Act. I considered the Guideline in my analysis. The harm established is serious enough to amount to persecution [40] The appellant stated that she feared criminals in general, but she also stated that she feared being sexually assaulted. I am of the opinion that the harm the appellant fears amounts to persecution. Gender-based violence against women is recognized throughout the world as a violation of fundamental human rights.6 According to the international instrument, the Declaration on the Elimination of Violence Against Women, the term violence against women means, for instance, any act of gender-based violence occurring in public or in private life. Violence against women shall be defined to encompass, but not be limited to: "Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution. [emphasis added]" The human rights and freedoms women are entitled to include the right to life, the right to security of person, and the right to the highest standard attainable of physical and mental health. These are the human rights that were and could be violated through the sexual violence the criminals committed against the appellant. The appellant's subjective fear is based on a ground set out in the definition of a Convention refugee [41] I am of the opinion that the nature of the persecution feared by the appellant fits into the category of [translation] "Haitian women." According to the principles set out by the Supreme Court of Canada in Ward,7 it is the appellant's status as a woman in Haiti, an innate or unchangeable characteristic, which places her in a particular social group. The appellant would not face a serious possibility of persecution [42] My role is to determine whether there is a serious possibility that the appellant would face gender-related persecution by unidentified agents of persecution if she returned to Haiti. I weighed the various risk factors regarding her personal situation and the documentary evidence to assess whether this risk amounts to a serious possibility of persecution. [43] I noted that the appellant did not make representations demonstrating how, based on her profile, her risk amounts to a serious possibility of persecution. She states at paragraph 50 of her memorandum that it goes without saying that, as a Haitian woman, she would face a risk of rape. [44] I do not agree. The Federal Court stated the following in Dezameau: "This is not to say that membership in a particular social group is sufficient to result in a finding of persecution. The 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".8 [45] The RAD acknowledges that, unfortunately, violence against women is a [translation] "widespread" problem in Haiti.9 [46] I analyzed the appellant's personal situation. For analysis purposes, I noted the following facts about the appellant's personal profile. She was born on XXXX XXXX, 1983, and is 37 years old. Her father and mother live in Port-au-Prince. Her uncles and aunts-XXXX in total-live in the countryside. She has XXXX XXXX training and substantial experience in XXXX. Her brothers and sisters live in Canada, Chile and Brazil. Her ex-husband and her two sons, U.S. nationals, live in the United States. [47] The appellant is single and did not allege any family violence, she has more than a high school education, and could live with her parents in the Port-au-Prince area if she returned to Haiti. According to the documentary evidence, this part of her profile reduces her risk of gender-related persecution. [48] However, I considered the fact that she would be part of the group of people of Haitian origin who have returned to their country, which increases her risk of being more severely affected by sexual violence.10 It seems, however, that discretion can reduce this risk to some extent. Tab 14.1 of the National Documentation Package on Haiti states that: In an interview with the Research Directorate, a Haitian human rights lawyer stated that people returning from abroad are not automatically categorized as such by society in general, because there is no way for their fellow citizens to know that they are returnees, unless there is media coverage; ... (Lawyer 17 June 2020).11 [49] According to the documentary evidence, it is not uncommon for women to live alone in Haiti.12 Single women have access to property or rentals, although access is more difficult for them. The appellant could therefore live alone like many women in the country, or with her parents. In her memorandum, the appellant does not contest the RPD's conclusion that she could live with her parents, who remained in Haiti. She did not allege that they would refuse to accommodate her, just that they did not want to see her return to Haiti. [50] The appellant has academic achievements-she completed XXXX XXXX training in Florida-and professional skills that can be of use to her in the labour market. She was employed and managed her own business in Haiti. The appellant has lived most of her life in Haiti and she speaks the country's language. I am of the opinion that she could support herself. [51] Various organizations in the country have noticed an increase in physical and sexual violence.13 According to the same evidence, however, women who are single are less affected than women who are separated or in a relationship; and in most cases, the perpetrator is the woman's partner or former partner. According to one source, half of sexual violence victims are minors. The documentary evidence states that 88 percent of women aged 15 to 49 have reported that they have never experienced sexual violence.14 [52] There are few social services in Haiti.15 However, the appellant could have the support of numerous women's associations in Haiti, if necessary.16 These services are the most structured in civil society.17 [53] After analyzing the documentary evidence and the appellant's particular profile, I am of the opinion that the RPD's decision is correct. [54] She did not establish that she would face a serious possibility of persecution if she returned to Haiti, or a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment. She also did not establish that, if she returned to Haiti, she would face a serious possibility of persecution by reason of her membership in the particular social group of single women in Haiti. [55] The appellant argued that there was no state protection for her in Haiti. Given my conclusion that she would not face a risk, I do not need to respond to this question. CONCLUSION [56] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Guerlain Guerrier Guerlain Guerrier November 23, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Gavryushenko v. Canada (Citizenship and Immigration), [2000] FCJ No. 1209, at paragraph 11; Gonzales v. Canada (Citizenship and Immigration), 2010 FC 1292; Lopez v. Canada (Citizenship and Immigration), 2014 FC 102; Sosa v. Canada (Citizenship and Immigration), 2014 FC 428; Sun v. Canada (Citizenship and Immigration), 2015 FC 387. 3 SPR-1, Refugee Protection Division (RPD) record, excerpts of the registry minutes, page 175. 4 SPR-1, RPD record, Your declaration as a claimant, page 25. 5 Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution, effective date: November 13, 1996. 6 SAR-1, National Documentation Package (NDP) on Haiti, September 1, 2020, Tab 5.13: Violence domestique. Haïti: Enquête Mortalité, Morbidité et Utilisation des Services [Domestic violence. Haiti: mortality, morbidity, and use of services survey] (EMMUS-VI 2016-2017). Institut Haïtien de l'Enfance [Haiti childhood institute]; The DHS Program. July 2018. 7 Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [1993] 2 SCR 689. 8 Dezameau v. Canada (Citizenship and Immigration), 2010 FC 559, at paragraph 29. 9 SAR-1, NDP on Haiti (September 1, 2020), Tab 5.3: Violence, including sexual violence, against women; state protection and support services (2017-June 2019). Immigration and Refugee Board of Canada (IRB). June 14, 2019. HTI106291.FE, at page 1. 10 SAR-1, NDP on Haiti (September 1, 2020), Tab 14.1: Treatment by society of Haitians who have lived for a long time abroad, especially in Canada, after they return to their country; whether they are at risk of being victims of violence, and including the ... IRB. August 27, 2020. HTI200334.FE, page 4. 11 Ibid., NDP on Haiti (September 1, 2020), Tab 14.1, page 2. 12 SAR-1, NDP on Haiti (September 1, 2020), Tab 5.4: The situation of women who live alone, including those who are not in precarious situations; whether they can access employment and housing; support services available to them (2017-June 2020). IRB. August 17, 2020. HTI200278.E. 13 Supra, endnote 9, Tab 5.3, at page 3. 14 Supra, endnote 6, Tab 5.13, at page 4/24. 15 Supra, endnote 12, Tab 5.4. 16 Supra, endnote 9, Tab 5.3, at page 24. 17 Supra, endnote 12, Tab 5.4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-30255 RAD.25.02 (January 2020) Disponible en français 12 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