MB9-30357

RAD File No. / No de dossier de la SAR : MB9-30357 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 Anne Revil Tribunal Counsel for the person who is the subject of the appeal Ubald Lalanne 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 (the appellant) is a citizen of Haiti. He stated that he left his country for Brazil in XXXX 2015. He then lived in the United States from XXXX 2016 to XXXX 2018. He arrived in Canada on XXXX XXXX XXXX 2018, and claimed refugee protection, stating that he feared being killed by criminals if he were to return to Haiti. [2] His claim was rejected by the Refugee Protection Division (RPD) on the grounds that if he was not excluded from the application of the 1951 Convention Relating to the Status of Refugees (the Convention), he failed to establish that his claim had a nexus to one of the Convention grounds and that the risk to which he would be subjected if he returned was not a generalized risk. [3] The RPD also dismissed the recusal request made by MR. XXXX legal counsel at the hearing and found that MR. XXXX examination was not overzealous. [4] MR. XXXX is appealing the decision before the Refugee Appeal Division (RAD), arguing that: * The decision-maker's lack of respect toward the refugee protection claimant and his legal counsel justified the recusal. * The RPD was overzealous in its examination. * His assailants attacked him by reason of his imputed political opinion, and as such, his claim fell outside the scope of section 96 of the Convention. * The evidence shows that he would be subjected to a risk of harm if he returned to Haiti. * He is still being sought by the criminals who drove him to flee the country and who continue to persecute his family members. * He would be subjected to a personalized risk if he returned to Haiti. [5] The determinative issues are therefore the following: * Did the RPD breach the principle of natural justice by not recusing itself and in questioning MR. XXXX? * Would MR. XXXX face a serious possibility of persecution by reason of his imputed political opinion if he returned to Haiti? * Would MR. XXXX be personally subjected to a risk to his life under section 97 of the Immigration and Refugee Protection Act (IRPA) if he returned to Haiti? DETERMINATION [6] The appeal is dismissed. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection, and it therefore rendered a correct decision. BACKGROUND MR. XXXX stated that he worked in a XXXX that XXXX XXXX XXXX in Haiti and that he had refused XXXX XXXX XXXX XXXX XXXX XXXX XXXX on XXXX XXXX, 2014. He was threatened by one of the criminals. At night, criminals went to his home and he fled. His brother was killed by these criminals. Fearing for his life, he left Haiti on XXXX XXXX, 2015, for Brazil, then he went to the United States, where his application for asylum was rejected. He arrived in Canada on XXXX XXXX XXXX 2018, and made a claim for refugee protection. ANALYSIS [7] The RAD's role is to determine whether the RPD erred in its analysis, as alleged by the appellant. [8] To do this, the RAD conducted its own analysis of the record and of all the evidence, listened to the recording of the hearing before the RPD, and applied the correctness standard. Reasonable apprehension of bias from the Refugee Protection Division [9] The RAD concludes that the RPD did not err in finding that the reasonable apprehension of bias had not been established, particularly during the incident with the legal counsel and MR. XXXX examination. Therefore, there was no failure to observe a principle of natural justice. [10] "It is well-established that the test for reasonable apprehension of bias is whether an informed person, reviewing the matter realistically and practically, and having thought the matter through, would conclude that the decision-maker would not decide fairly."1 [11] In this case, MR. XXXX argues that the RPD member was disrespectful to both him and his legal counsel, and that she misrepresented the facts in her decision. He stated that the member had asked the legal counsel to show him a document, then asked him to sit down, addressing him as if he were inferior and making a contemptuous gesture. Through his legal counsel, MR. XXXX noted the colonialist nature of the hearing, which included three Black individuals: the claimant, the legal counsel and the interpreter. He added that the member denied the break requested by his counsel, even though he mentioned that he was not feeling well and that he might have a heart attack. He added that when [translation] "the hearing resumed, the panel, who had to leave her seat to present the same document to the appellant, had to stay next to him until the end of her examination on it before returning to her seat." Lastly, he claimed that the member was overzealous during her examination. [12] The RAD listened carefully to the recording of the RPD hearing. [13] It revealed that, while the member was questioning MR. XXXX about the fact that his Basis of Claim Form (BOC Form) did not mention that he had received a call from his friends telling him that people were lurking around the house, she asked the counsel if he could give his client a copy of the amendment to the BOC Form. She then asked MR. XXXX where this was mentioned in the document. [14] As MR. XXXX was answering, the member asked the counsel to sit down and to take all the other documents with him. He stated that he did not understand, the member repeated themselves and the counsel virulently lost his temper. He threatened that he would go into cardiac arrest if the member did not allow him to take a break. In the two minutes that followed, the member granted a break. After the break, the RPD member, MR. XXXX and the interpreter waited for counsel's return. Counsel asked the RPD member to recuse herself because he and his client no longer believed in her impartiality due to her behaviour toward them, her insistence on repeating the same question, her zealousness, and the fact that she had asked counsel to sit down even though she had asked him to show a document to his client. The member dismissed the recusal request and continued with the hearing. [15] The RAD notes that it is customary for the RPD member to ask counsel to show their client a copy of the amended BOC Form. In this case, it was only when she told counsel that he had to return to his seat and not show the other documents that he lost his temper. The RAD notes that, before counsel lost his temper, the member addressed him properly and that she remained calm when he began yelling and accusing her of speaking to him as if he were a servant and interrupted her while screaming, without giving her the opportunity to speak or allowing the interpreter to translate. In light of counsel's outburst, the member agreed to his request for a break. After the break, counsel presented the recusal request, which was denied, and the examination calmly resumed and the member was courteous to all the individuals present. [16] Asking counsel to sit down and not show other documents to his client aside from the one she is questioning him about is not a matter of the member being biased toward MR. XXXX or his counsel, but rather of how she decided to carry out the examination. [17] As for the member's alleged hand gesture, the RAD is unable to rule on the matter since it naturally does not come up in the recording, nor is it mentioned by counsel in his recusal request. [18] As for the fact that the member had sat down next to MR. XXXX, it was clear from listening to the recording of the hearing that after the break, counsel refused to show his client a copy of the amended BOC Form, telling the member that she herself had to bring him her copy. She had to get up to show MR. XXXX her copy of the document, and explained that since she had only one copy of the document, she could not give it to him and therefore had to sit next to him. It can be heard in the recording that she then returned to her seat. [19] The RAD notes that the member spent less than one minute sitting next to MR. XXXX, that neither he nor his counsel were opposed to it-counsel had even asked the member to do so-and that the appellant did not state how this was a demonstration of the member's bias. Furthermore, the member explained to MR. XXXX why she was next to him, which would have enabled him to understand and not misinterpret her presence. Lastly, the member put forward her questions clearly, using a calm and courteous tone while she was next to MR. XXXX. [20] In light of these factors, particularly the short duration of time the member spent next to MR. XXXX, the RAD does not note any demonstrations of bias. [21] With respect to the fact that the panel had [translation] "the image of colonialism," the RAD notes that the member showed courtesy and respect to the participants throughout the hearing, and used an appropriate tone and language, including during the incident with the counsel, and that both the appearances and the merits of the hearing were impartial. [22] After listening to the recording and analyzing the record, the RAD does not see how the RPD misrepresented the facts in its decision, as it indicated that the hearing was conducted in accordance with its code of conduct and explained that it had asked the counsel to return to his seat [translation] "since it was unnecessary and awkward for him to be standing over the refugee protection claimant's shoulder as he tried to read the document given to him." This description is consistent with the RAD's analysis. [23] The RAD notes that MR. XXXX was not involved in the incident between counsel and the member, and it finds that he was not put in a situation where he would have an apprehension of bias. After the break that followed the incident, the member resumed the hearing by continuing to speak in a courteous manner. [24] Lastly, with respect to the RPD member's zealousness during her examination, the RAD notes that, prior to the incident, in the first 58 minutes of the hearing, the RPD questioned MR. XXXX about the people he feared (the criminals), why he believed these criminals were linked to the PHTK, and how he knew these people were still looking for him. She had to repeat her questions since MR. XXXX answers were not always clear, even though the questions themselves were specific. She then asked him about the fact that an important part of his fear-the fact that his friends had told him over the telephone that people were still lurking around his house-was not mentioned in his BOC Form or in the amendment, and asked counsel to show his client the amendment in question. The incident with counsel took place immediately afterward. [25] The RAD finds that the RPD member tried to obtain clear responses to her questions on determinative factors of MR. XXXX claim and was not overzealous in doing so. [26] Consequently, the RAD finds that a reasonable apprehension of bias on the part of the RPD has not been established and that it was correct to dismiss the recusal request. Risk of persecution [27] The RPD did not err in finding that it was not established that MR. XXXX had been targeted by reason of his political opinion and, under the circumstances, that it was not established that his claim had a nexus to the protection provided under section 96 of the IRPA. [28] MR. XXXX stated in his BOC Form and at the hearing that he had been attacked by criminals because he refused to XXXX XXXX XXXX XXXX. There is nothing on the record, contrary to what the appellant states in his memorandum, to suggest that the criminals had imputed a political opinion to him. He never expressed a perceived or actual political opinion, nor did he state that the criminals had attacked him for this reason. The fact that these criminals were allegedly affiliated with the PHTK party does not make this non-political assault political. [29] There is no other alleged grounds of persecution and, under the circumstances, there is no nexus between his claim and the Convention. Risk to his life [30] The RPD did not err in finding that it had not been established that the criminals who attacked MR. XXXX in 2014 were still looking for him today and that the risk feared by MR. XXXX, namely being attacked by criminals, is not a personalized risk for the reasons outlined below. [31] The family home where MR. XXXX was attacked has been abandoned since the date of the attack, namely XXXX 2014. MR. XXXX claimed that his friends had told him that the criminals were lurking around this house and concluded that these were the criminals who had attacked him in XXXX 2014. [32] The RAD notes that the appellant simply stated that paragraphs 29 to 32 of the RPD decision establish that the appellant is still being sought today by the same criminals, without elaborating, while the RPD conclusion stated the opposite, namely that these allegations had not been established. [33] The RAD finds that just because criminals were still lurking around this abandoned house does not infer that they are the same criminals as those who killed his brother while they were looking for him in 2014. In terms of the situation of insecurity in Haiti, it is not uncommon to see criminals in the country.2 [34] With respect to the threatening calls his mother, sister and his son's mother received over the years, MR. XXXX stated at the hearing that these calls threatening to rape them were anonymous and that the callers were likely the criminals who had attacked him in 2014, but that they did not refer to him or the events of 2014. [35] Yet in his amended written account, MR. XXXX states that the criminals had told his family members that he must not return to Haiti. [36] When asked about the fact that he did not report these remarks at the hearing, at which time he only stated that his friends, XXXX XXXX XXXXand XXXX, had told him not to return, he explained that had heard from several people. This explanation regarding the omission is not credible insofar as he was questioned at length about why he believed that the criminals were still looking for him and about the calls made to his family. [37] Furthermore, it is not credible that the criminals would still be looking for him to kill him because he allegedly refused to give them XXXX XXXX XXXX six years ago, especially given that he has not XXXX XXXX XXXX since then and that he and his family have abandoned the house. [38] Consequently, in light of all this evidence, it has not been established, on a balance of probabilities, that criminals are still looking for him today in Haiti due to events in 2014. [39] The appellant also contested the RPD's conclusion that the risk to which he would be subjected if he returned would not be personalized by simply stating that it was established that the risk was specific to him. [40] However, like the RPD, the RAD finds that that the documentary evidence shows3 that delinquency is significant in Haiti, and that attacks, particularly home invasions, occur frequently. This is unfortunately a generalized situation to which all Haitians are subjected. [41] However, to be granted status as a person in need of protection under section 97 of the IRPA, the refugee protection claimant must establish that the risk he would face if he returned to his country differs from that of other individuals residing in that country. [42] MR. XXXX would therefore not face a personalized risk if he returned to Haiti. Conclusion of analysis It has therefore not been established that the appellant would face a serious possibility of persecution if he returned to Haiti. It has also not been established that the appellant would be a person in need of protection since he would not be personally subjected to one of the risks set out in section 97 of the IRPA, on a balance of probabilities, if he returned to Haiti. CONCLUSION [43] The appeal is dismissed. The RAD confirms the determination that the appellant is neither a Convention refugee nor a person in need of protection. (Signed) Anne Revil Anne Revil November 23, 2020 Date IRB translation Original language: French 1 Eshetie v. Canada (Citizenship and Immigration), 2019 FC 1036. 2 Archive - National Documentation Package (NDP) on Haiti, June 29, 2018, Tab 7.1: The security situation, including crime and kidnappings; measures taken by the government and other stakeholders to fight crime (2014-June 2018). Immigration and Refugee Board of Canada. June 19, 2018. HTI106116.FE and Archive - NDP on Haiti, June 29, 2018, Tab 7.2: Haïti : La situation sécuritaire. [Haiti: the security situation]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. August 29, 2016. 3 Idem. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-30357 RAD.25.02 (January 2020) Disponible en français 9 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