MB9-29622

RAD File / Dossier de la SAR : MB9-29622 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, QC Appel instruit / entendu à Date of decision November 19, 2020 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the person who is the subject of the appeal Murhula Jugauce Mweze 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), a citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD), which rejected his refugee protection claim. [2] The appellant states that he fears being killed by members of a political party that is a rival to the one he was a member of. [3] The RPD rejected the appellant's refugee protection claim because it concluded that he lacked subjective fear for failing to apply for asylum in the nine countries he travelled through, which undermined all credibility of his claim. [4] The appellant argues that the RPD erred in finding his failure to apply for protection in a number of Convention signatory countries to be determinative and in applying the exclusion under Article 1E of the Convention to him without explicitly stating so. It failed to consider the insecurity that prevails in Haiti or to examine the persecution and violence that he was subjected to in that country and in Brazil. [5] The Minister of Immigration, Refugees and Citizenship (Minister) intervened before the RPD, but did not intervene on appeal. [6] The Refugee Appeal Division (RAD) is of the opinion that the determinative issue is the rejection of the refugee protection claim based solely on the absence of subjective fear for failing to apply for asylum in the countries he travelled through to get to Canada. [7] The RAD sets aside the RPD's determination. It refers the matter to the RPD for a new hearing with directions set out at the end of the decision. BACKGROUND [8] According to his written account,1 the appellant was politically involved in his city of birth. Reportedly, he joined the Mochrena political party in 2010 and held the position of XXXX. The appellant allegedly played an important role in the elections held that year by XXXX XXXX XXXX. Apparently, his party's leader won and defeated the Ayiti An Aksyon (AAA) party leader. The appellant states that he started to receive threats from AAA supporters, was insulted and shoved in the street. In 2014, while elections were in the works, the appellant was reportedly ambushed by armed individuals in balaclavas and severely beaten. A peace judge apparently filed a report and the appellant remained in the hospital for a few months. [9] Allegedly, the appellant left Haiti for Brazil and spent a year and six months there. He states that there were problems; he was insulted and was afraid that he would be beaten there. He apparently left that country in XXXX 2016. [10] After travelling through eight countries, the appellant reportedly arrived in the United States on XXXX XXXX, 2016. On XXXX XXXX, 2017, he apparently came to Canada and claimed refugee protection here. [11] In October 2019, the appellant's mother was reportedly attacked by two men in balaclavas and died from her injuries. For safety reasons, the appellant's children were apparently relocated and are not attending school. ANALYSIS [12] The RAD carried out an independent analysis of all the evidence, including listening to the recording of the RPD hearing, and it applied the correctness standard.2 [13] According to the RAD, the RPD should have analyzed the application of the exclusion under Article 1E of the Convention given the Minister's position.3 According to him, either the appellant had permanent resident status in Brazil or he failed to complete the formalities to obtain it and his inaction undermined the credibility of his allegations and demonstrated an absence of subjective fear. And, if the RPD concluded that the exclusion did not apply, it should have assessed the merits of the refugee protection claim. It was incorrect for the RPD to limit its assessment of the appellant's fear in Haiti by basing it exclusively on his failure to apply for asylum in the countries he travelled through before arriving in Canada. [14] The RAD is of the opinion that it does not have the evidence necessary to rule on the exclusion under Article 1E of the Convention or on the merits of the refugee protection claim, if applicable. Failure to apply for protection in other countries [15] The appellant argues that according to the case law, the failure to apply for protection from a Convention signatory country may be an important factor to consider in the assessment of subjective fear, but it is not a determinative factor. Furthermore, a brief stay in a safe country along the way is not necessarily treated as a significant enough stay to require a person to file an asylum application. The appellant claims that the RPD's decision is therefore a denial of justice and that it must be set aside and a new hearing held. [16] The RPD emphasized that the appellant did not claim asylum in any country because [translation] "he wasn't interested." It concluded that this demonstrated his absence of subjective fear. The RPD also raised the fact that the appellant allegedly stated that he spent about 12 months in the United States resting at his sister's home. According to the RPD, the Convention must not help people who prefer to claim asylum in one country over another, and it did not have reason to believe that the countries travelled through would not have honoured their international commitments. [17] The RAD shares the appellant's perspective regarding the principles established in the case law. An unfavourable conclusion can be drawn from the refugee protection claimant's failure to apply for protection from a country that is a signatory of the Convention, but this failure cannot be a determinative factor. The explanations of the refugee protection claimant must be assessed. According to the case law,4 a short stay in a safe third country en route is not necessarily considered a material enough sojourn to oblige the refugee protection claim to apply for asylum in that country. Stays of a few hours in an airport or being in transit for five weeks5 in a country were not qualified as being of sufficient importance. [18] The appellant describes in his account6 that he left Brazil at the end of XXXX 2016 for the United States [translation] "travelling through a number of countries in Latin America," and he apparently arrived at the Mexico-United States border on XXXX XXXX, 2016. In listening to the recording of the hearing, the RAD noted that the appellant testified7 travelling through seven or eight countries and following questions from the RPD, he confirmed that it was nine countries: Colombia, Panama, Costa Rica, Ecuador, Mexico, Guatemala, Honduras, Nicaragua and Peru. [19] The appellant therefore travelled through nine countries in two months. The evidence does not establish how many days the appellant allegedly stayed in each of these countries. [20] In listening to the recording of the hearing, the RAD noted that the appellant explained that he did not claim asylum in the countries he travelled through because he wanted to go to the United States,8 but also out of fear that the authorities in those countries would deport him to Haiti9 and he could not claim asylum because had entered illegally at night.10 [21] The context described by the appellant leads the RAD to conclude that he spent little time in each of the countries he travelled through, and it does not draw an adverse conclusion for failing to apply for protection in those countries. [22] In his written account,11 the appellant indicates that he did not apply for asylum in the 12-month stay in the United States because there was no chance he could stay there owing to the anti-immigration policy of President Trump. The RAD noted that President Trump had not yet been elected when the appellant arrived in the United States in XXXX 2016. In listening to the recording of the hearing, the RAD noted that the appellant indicated12 that it was difficult to be a refugee status claimant in the United States and that it was said that the President did not want to see immigrants; they were jailed if they applied for asylum and were later deported. To a question from his counsel who asked him why he had not applied for asylum in the United States, the appellant answered13 that there was this mental picture that once President Trump was elected, no immigrant could stay in that country. The appellant also testified14 that his identity had been stolen by a brother of his father to obtain permanent resident status in the United States, which complicated the situation. [23] Although the appellant's explanations are not completely consistent, the RAD nevertheless does not find his failure to apply for protection in the United States determinative. [24] The RAD does not find the RPD's conclusion correct that the mere fact that the appellant failed to claim asylum in the countries he travelled through between Brazil and Canada, and the United States, demonstrates his lack of subjective fear and undermines his credibility. [25] The RAD is of the opinion that the appropriate questions were not asked at the hearing before the RPD regarding the application of the exclusion under Article 1E of the Convention, and if applicable, regarding the merits of the refugee protection claim with respect to Haiti, his country of citizenship. The RAD is therefore not able to conduct its own assessment without holding a hearing. CONCLUSION AND DIRECTIONS [26] The RAD cannot confirm or set aside the RPD's determination and substitute a determination that, in its opinion, should have been made, without holding a new hearing for an in-depth re-determination of the appellant's situation. As there is no new evidence, the RAD cannot hold a hearing. [27] Under paragraph 111(1)(c) of the Immigration and Refugee Protection Act, the RAD allows the appeal, sets aside the RPD's determination and refers the matter to the RPD so that it may be heard by a member other than the one who made the determination at issue, in keeping with the following directions. [28] The RAD calls on the RPD to assess the application of the exclusion under Article 1E of the Convention and, if applicable, the merits of the refugee protection claim in the appellant's country of citizenship. (signed) Isabelle Parizeau Me Isabelle Parizeau November 19, 2020 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) file, written account, p. 8 to 10. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 SPR-1, RPD record, Minister's Notice of Intervention, p. 83 to 88, para 29. 4 Mendez v. Canada (Minister of Citizenship and Immigration), 2005 FC 75, para 37. 5 Nel v. Canada (Citizenship and Immigration), 2014 FC 842, para 53 to 62. 6 SPR-1, RPD record, written account, p. 10, lines 66 and 67. 7 Audio recording of the RPD hearing on November 13, 2019; see at about 0:36:11 minutes to 0:37:22 minutes. 8 Ibid., see at about 0:38:54 minutes to 0:39:27 minutes. 9 Ibid., see at about 0:50:12 minutes to 0:51:09 minutes and 0:51:48 minutes to 0:52:01 minutes. 10 Ibid., see at about 0:37:23 minutes to 0:38:53 minutes. 11 SPR-1, RPD record, written account, p. 10, line 72 to 74. 12 Audio recording of the RPD hearing on November 13, 2019; see at about 0:39:28 minutes to 0:40:11 minutes. 13 Ibid., see at about 0:51:32 minutes to 0:51:47 minutes. 14 Ibid., see at about 0:43:09 minutes to 0:45:52 minutes. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-29622 RAD.25.02 (January 2020) Disponible en français 7 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