MB7-08803

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 : MB7-08803; MB7-08804 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision July 6, 2018 Date de la décision Panel Normand Leduc Tribunal Counsel for the appellant(s) Me Stéphanie Valois Conseil(s) du (de la/des) appelant(e)(s) Designated representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX, a citizen of Haiti, and her minor daughter, XXXX XXXX XXXX, a citizen of the United States, are appealing the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] They are not submitting any new evidence in their appeal and are not requesting that a hearing be held before the Refugee Appeal Division (RAD). [3] The principal appellant, XXXX XXXX, was appointed the designated representative for her minor daughter. 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 XXXX XXXX and XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [5] In her Basis of Claim Form (BOC Form), the principal appellant alleges that in 2015 she joined a political party called G18 and that she was subsequently among the members who in XXXX 2015 chose XXXX XXXX XXXX as a candidate for XXXX XXXX XXXX. [6] The appellant alleges that, after choosing Mr. XXXX, she started receiving anonymous telephone calls. Her car was vandalized on several occasions, and she alleges she was followed when she went to the restaurant with her spouse and her daughter. [7] The appellant alleges that, in XXXX 2016, some individuals threw stones at her car while she was parking at the grocery store. She alleges that she was saved by security guards of the grocery store, where she was compelled to spend the entire afternoon. [8] On XXXX XXXX, 2016, the appellant, accompanied by the minor appellant, left for the United States, where they stayed until March 25, 2017, the date on which they came to Canada to claim refugee protection. [9] The minor appellant is basing her claim on that of her mother. [10] The RPD rejected the claim for refugee protection on the ground that the events the appellant experienced in Haiti, while generally found to be credible, did not demonstrate that she had a well-founded fear of persecution on a Convention ground or that the appellant would be subjected to a danger of torture or to a risk to her life or to a risk of cruel and unusual treatment of punishment if she had to return to Haiti. [11] The RPD also determined that the evidence submitted did not demonstrate, with respect to the minor appellant, a well-founded fear of persecution or the likelihood of being subjected to a risk to her life under section 97 of the IRPA if she had to return to the United States. [12] Before the RAD, the appellants submit that the RPD erred by failing to take into account the documents filed into evidence and the principal appellant's unequivocal testimony in its analysis of the reasons for the assaults that she experienced in Haiti. [13] They also submit that the RPD erred in its assessment of the minor appellant's fear of returning to the United States, by failing to consider the fact that the separation from her mother as such constitutes persecution. [14] For these reasons, the appellants are requesting that the RAD set aside the RPD's determination and grant them refugee protection or, alternatively, refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND RAD'S ROLE [15] The RAD's role is to review RPD decisions using the correctness standard after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings in the assessment of the credibility of or the weight to be given to the oral testimony before it in situations where it enjoys a meaningful advantage. In such cases, the RAD must apply the reasonableness standard (Canada v. Huruglica, F.C.A., No. A-470-14). If I am of the opinion that the RPD enjoyed a meaningful advantage, I will provide reasons in my analysis. ANALYSIS A. XXXX XXXX's claim [16] The issue in this case is whether the RPD erred in finding that the evidence submitted does not demonstrate that the appellant has a well-founded fear of persecution or that she would be subjected to a risk under section 97 of the IRPA if she had to return to Haiti. [17] In my opinion, after analyzing all the evidence submitted, as well as carefully listening to the hearing held before the RPD, the answer to this question is no, for the following reasons. [18] First, the RPD found that it was not demonstrated that the anonymous telephone calls received by the appellant in 2015 were related to her political activities or to any of the other grounds that fall within the refugee definition. I agree with this interpretation; according to the appellant's testimony, the statements made during these calls were brief and vague, and have no connection to anything whatsoever except, in a vague and somewhat incomprehensible way, to her spouse. [19] Moreover, the appellant's testimony reveals that these calls were not the primary reason why she left her country and claimed refugee protection: the appellant left her country for the United States in XXXX 2015 after filing a complaint with the police, only to return there in XXXX 2016. When asked why she returned to Haiti in XXXX 2016, the appellant explained that the event that truly scared her was that which occurred on XXXX XXXX, 2016, when some individuals threw stones at her car. [20] In my opinion, the appellant's testimony and her voluntary return to Haiti demonstrate that she had no subjective fear of persecution as a result of the calls and the vandalism to her car. [21] In addition, nothing in the evidence indicates that these calls continued after XXXX 2015, whether directed at her spouse or at the appellant herself after she returned to the country. [22] Second, the RPD found that the incident experienced by the appellant on XXXX XXXX, 2016, was not related to her political activities but rather was simply happenstance because she [translation] "was in the wrong place at the wrong time." [23] In analyzing the evidence presented, I draw the same conclusion as the RPD. [24] In her testimony, the appellant explained that she parked in the street (not in the parking lot of the grocery store) and that a group of individuals threw stones at her car. A grocery store security guard helped her get out of her car and brought her to safety inside the store. The appellant explained that this incident happened very quickly, that she did not recognize any of the assailants and that, in addition, that time in Haiti was a [translation] "difficult period" and that there were several demonstrations in Port-au-Prince. Furthermore, it seems that the assailants did not make any statements during the [translation] "attack" that could establish a link between them and the appellant. [25] Lastly, the RPD also found that the event mentioned by the appellant, which occurred when she, her child and her spouse were going to a restaurant in February 2016, was not related to her political activities. [26] In this regard, the appellant explained that they felt they were being followed by a man who also sat at a table in the restaurant and who stared them down, which made the appellant and her family decide to leave the restaurant in question. [27] When questioned as to why she thought that this individual was following them, the appellant answered [translation] "that she did not know" and that this man looked at them but did not speak to them. It was not until the RPD asked her whether she knew the man that the appellant answered yes, that he was one of the men who had thrown stones at her car on XXXX XXXX. The RPD did not find this statement credible, and I draw the same conclusion: if the appellant had recognized the man in the restaurant, she would not have failed to mention this in her BOC Form and would have confirmed it spontaneously when questioned about the reasons why she thought that this man had really been following them. [28] I therefore draw the same conclusion as the RPD with respect to this event, that is, that there is no evidence to support a connection between this man and the appellant's political activities. I would add that there is also nothing to show that this was an event of persecution. On a balance of probabilities, this is simply a man who went to the same restaurant as the appellant, and no threats were uttered and no attack was made. [29] In her memorandum, the appellant submits that the RPD erred in failing to consider the documentary evidence filed, such as the police report concerning the threats and the report concerning the vandalism to her car. [30] In my opinion, this is not an error, since the RPD did not doubt the credibility of the events. It is the appellant's interpretation of the events that is called into question, and the police reports filed into evidence do not indicate the reasons for or the perpetrators of the calls and the vandalism. [31] Moreover, the letter from the G18 political platform (see page 269 of the RPD record) seems to confirm that the appellant was not personally targeted during the event of XXXX XXXX, 2016, because it states that the appellant [translation] "was a victim of the demonstration organized on XXXX XXXX, 2016," and also that, during this event, the appellant "received death threats," which contradicts the appellant's testimony. [32] The RPD's analysis concerning the application of section 97 of the IRPA is brief and is included in paragraph 23 of its reasons. [33] However, in my opinion, the analysis under section 96 of the Act made by both the RPD and the RAD also leads to the conclusion that the appellant is not personally subjected to one of the risks listed in subsection 97(1). I find that the RPD did not err in not carrying out the same analysis to conclude that the appellant is not subjected to a risk under subsection 97(1). B. XXXX XXXX XXXX's claim [34] In the case of the minor appellant, a citizen of the United States, the appellants submit that the RPD did not analyze the written submissions provided to it (see pages 301 to 306 of the RPD record), which in summary suggest that she fears persecution in the United States on account of the separation from her mother. The appellants referred to the Convention on the Rights of the Child to support their allegations, in particular regarding the primacy of the best interests of the child and of the family unit. [35] In my view, the RPD did not err in concluding that the minor appellant had failed to demonstrate a reasonable fear of persecution or a likelihood of being subjected to a risk under section 97 of the IRPA if she had to return to the United States. [36] First, I find that the RPD did indeed take into account the written submissions of the appellants in paragraphs 24 to 27 of its reasons. [37] Second, I adopt the reasoning of my RAD colleague Maria De Andrade in paragraphs 42 to 59 of her reasons in file no. MB6-06938, a decision reported at X (Re), 2017 CanLII 142905 (CA IRB) and also published on the IRB website under "Reasons of Interest." [38] In that case, where the facts are similar to those in this case with respect to a minor child with US citizenship and whose parents were citizens of Haiti, the RAD determined that the principles of family unity and the best interests of the child set out in the Convention on the Rights of the Child did not apply before the RPD or the RAD and in and of themselves were not sufficient to demonstrate a well-founded fear of persecution in the United States. C. Conclusion [39] Consequently, considering all of the foregoing, I conclude that the appellants failed to demonstrate that the RPD committed errors that justify the intervention of the RAD. REMEDY [40] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX and XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. [41] The appeal is dismissed. Normand Leduc Normand Leduc July 6, 2018 Date IRB translation Original language: French 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB7-08803; MB7-08804 8