MB9-21127

RAD File No. / No de dossier de la SAR : MB9-21127 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 Ottawa, Ontario Appel instruit / entendu à Date of decision September 9, 2020 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the person who is the subject of the appeal Jean-Marie Hercules 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] I dismiss the appeal. [2] The appellant, XXXX XXXX, is a citizen of Haiti, where she claims to fear for her life because of the country's insecurity and because she is a woman. The appellant left Haiti in 2010 to live in the United States until she arrived in Canada in XXXX 2017. [3] The Refugee Protection Division (RPD) rejected the appellant's refugee protection claim because it found her credibility to be undermined by an omission and significant contradictions in her testimony. The RPD was also of the opinion that the appellant did not demonstrate the existence of a prospective risk. [4] The appellant, in this appeal, submits that the RPD's decision is based [translation] "on erroneous findings of fact and/or law, made in a perverse or capricious manner without regard for the material before it and inconsistent with the objective and spirit of the immigration act." The appellant points out that the culture of vengeance against police officers still exists in Haiti, that she lived in a [translation] "dangerous neighbourhood" in her country and that the situation is still just as precarious. [5] The determinative issue for the Refugee Appeal Division (RAD) is credibility. HOLDING AN ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [6] In his written statement, the appellant's counsel does not request that an oral hearing be held, stating that he will let the RAD decide whether an oral hearing is necessary in this case. The appellant did not file any submissions or additional evidence in support of this request. [7] The RAD is responsible for determining whether or not the criteria set out in subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) have been met.1 In this appeal, given that no new evidence has been filed, the conditions set out in subsection 110(6) of the IRPA have not been met. Consequently, there is no cause to hold an oral hearing in this appeal. ANALYSIS [8] My role is to examine all the evidence and establish whether the decision rendered by the RPD is correct.2 In this analysis, I have considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.3 [9] In her memorandum, the appellant claims that the RPD erred in finding that her credibility was undermined by significant contradictions and an omission in her testimony on the basis of the following arguments: - [translation] "The panel erred in fact, as the appellant, in her testimony, did her best to relate the facts without trying to embellish her story." - The RPD should have [translation] "...taken into consideration the appellant's health condition, so it is clear that when testifying, she could have forgotten certain details, but that should not undermine her credibility." - The RPD was overzealous in conducting a microscopic examination of her testimony. - The RPD [translation] "... gave undue importance to factors that are not significant." - [translation] "A refugee protection claimant testifying before the Board is someone who is stressed and who may forget certain important facts. Furthermore, a hearing can often mean the claimant is already thinking about a possible return to their country, and this fear may ratchet up the stress level." - It should not be sufficient for the decision-maker to state that he would prefer to believe a more reasonable explanation of the events or make his own speculations. - [translation] "All these negative inferences by the panel, drawn erroneously, undermine the appellant's credibility and now place her life in danger if she were to return to Haiti." - The presumption of truthfulness should not have been displaced. [10] Paragraph 3(3)(g) of the Refugee Appeal Division Rules states, among other things, that the appellant's memorandum must include full and detailed submissions regarding the errors that are the grounds of the appeal and where the errors are located in the written reasons. Yet, the appellant's arguments cited above, as well as those cited at paragraph 4 of this decision, are generic and some do not seem to pertain to the appellant's file. Beyond the general finding that the appellant is not credible, these arguments are not related to any of the RPD's conclusions or reasoning, to facts or to portions of her Basis of Claim Form (BOC Form) or her testimony. [11] In this context, in the absence of new evidence, and having reviewed the reasons for which the RPD found the appellant not to be credible, I am of the view that the RPD did not err in determining that the appellant is not a refugee or person in need of protection. My reasons are the following. The Refugee Protection Division correctly assessed the appellant's credibility [12] In its decision, the RPD states that the appellant's credibility is undermined by an omission and contradictions in her testimony for which she did not provide satisfactory explanations. Failure to include the threat made to the appellant's father in 2010 in her written account [13] At the hearing, the appellant stated that she was afraid of abductors who, in 2010, told her father that they would make him cry. However, neither the appellant's initial BOC Form nor her amended account submitted on July 30, 2019, address this threat. When the RPD asked her to explain why this information was not included in her BOC Form, the appellant responded that it was because she knew she would have the opportunity to talk about it at the hearing. The RPD then pointed out to her that the BOC Form clearly indicates that all facts important to the refugee protection claim are to be included. It then asked her if it did not seem important to address this threat made to her father in her BOC Form, to which the appellant answered, [translation] "no." The RPD correctly concluded that the appellant's answer was not satisfactory. [14] In her memorandum, the appellant does not explain how this RPD conclusion is incorrect. In my opinion, none of the generic arguments submitted by the appellant justify her failure to include the actual reason she fears returning to Haiti in her initial account or her amended account submitted on July 30, 2019. The appellant's stress and health condition, which were presented to the RPD, do not explain this significant omission either. [15] The RPD correctly found that this omission undermines the appellant's credibility as it is an essential element of her refugee protection claim. Contradictions regarding significant elements of the appellant's refugee protection claim [16] At the hearing, the appellant initially stated that she never asked her father about the context in which her abductors threatened him in 2010. Later in her testimony, the appellant stated that she had asked her father for information about these threats. When the RPD asked her to explain this contradiction, the appellant responded that she had not heard the initial question, then that she did not remember the question. The RPD was of the opinion that this answer was unsatisfactory. [17] In her memorandum, the appellant does not explain how this RPD conclusion is incorrect, and none of the generic arguments put forward by the appellant can be used to explain how this conclusion is erroneous. [18] In my opinion, the RPD correctly concluded that this explanation from the appellant was unsatisfactory. During the hearing, when asked the first question, the appellant did not ask that it be restated; she did not respond that she did not understand the question. Rather, she responded straightforwardly. [19] During the hearing, the appellant stated that a robber aimed a weapon at her father before stealing his car, while the complaint report submitted in evidence indicates that her father noticed the theft when leaving church. When confronted with this contradiction, the appellant responded that she answered that way because she was stressed. The RPD did not accept this explanation. [20] In her memorandum, the appellant does not explain how this RPD conclusion is incorrect, and none of the generic arguments put forward, including those regarding refugee protection claimants often being stressed and the appellant's health, do not explain this contradiction. The difference between stating that a robber aimed a weapon at her father before stealing his car and that her father noticed the theft of his car when leaving church is too large to be explained by an individual's health or level of stress. [21] I am of the opinion that the omission and the contradictions identified by the RPD concern elements central to the appellant's refugee protection claim. Without a satisfactory explanation, they undermine her credibility. In my opinion, the appellant did not demonstrate, on a balance of probabilities, that her father had been targeted in the past. [22] Consequently, the RPD did not err when it drew a negative inference as to the appellant's credibility due to her omission and contradictions. The Refugee Protection Division did not err in displacing the presumption of truthfulness [23] In her memorandum, the appellant submits that the RPD discounted her testimony on a number of occasions, even though there is a presumption that sworn statements are true. [24] This presumption can be rebutted. In Maldonado,4 which the appellant mentions in her memorandum, it is stated that this presumption is rebutted when there are valid reasons to doubt the truthfulness of an appellant's testimony. In this case, the RPD had good reason to doubt the truthfulness of the appellant's testimony, specifically because she omitted key information in her BOC Form and contradicted herself a number of times during the hearing on elements central to her refugee protection claim. [25] Consequently, the RPD did not err by displacing the presumption of truthfulness, as it had good reason to find that the appellant was not credible. Prospective risk [26] At the hearing, the appellant stated that she fears returning to Haiti because it would be difficult to find a hospital or doctor there to treat her medical condition of an [translation] "unspecified XXXX XXXX." In her memorandum, the appellant submits that it would be dangerous for her to return to Haiti for the following reasons: - Her father is a XXXX XXXX and based on the documentary evidence, there is a culture of vengeance in Haiti and [translation] "if they cannot get to her father, they can try to harm the appellant...." - [translation] "The criminals are still active and can easily find the appellant if she were to return to Haiti...." - She [translation] "lived in a dangerous neighbourhood." [27] I am of the opinion that the appellant has not demonstrated a prospective risk if she were to return to Haiti for the following reasons: 1. The evidence submitted in support of the prospective risk relating to her father is not credible. Even assuming that her father had actually been threatened in 2010 in Haiti and that his car had been stolen in 2014, the appellant did not demonstrate how these events would subject her personally to a risk pursuant to section 97 of the IRPA. 2. The appellant did not demonstrate how having difficulty finding a psychiatrist in Haiti or the state's inability to provide adequate health care would personally subject her to persecution or a risk pursuant to section 97 of the IRPA if she were to return to her country. Furthermore, subparagraph 97(1)(b)(iv) stipulates that the risk to life or the risk of cruel and unusual treatment or punishment cannot be caused by the inability of a country to provide adequate health care. A refugee protection claimant only qualifies for protection if the lack of health care is due to persecution, which is not the case here. 3. I note the appellant's statement that she [translation] "... lived in a dangerous neighbourhood." However, there are no arguments in support of this statement, not even the neighbourhood she is referring to. Gender-based risk [28] According to the documentary evidence, sexual violence and gender-based violence are widespread in Haiti. Violence, including the risk of sexual assault, is grounded in a Haitian woman's membership in the particular social group of Haitian women.5 However, membership in a particular social group is not 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'."6 [29] The documentary evidence lists certain factors that make Haitian women more vulnerable to gender-based persecution, such as living in rural areas or camps, having been displaced within Haiti, being a survivor of sexual or domestic violence, having a disability, being pregnant or being a member of a sexual minority.7 [30] In my opinion, the appellant has not established that there is a serious possibility that she would be subjected to persecution or a risk of harm based on her gender if she were to return to Haiti. In analyzing the documentary evidence on the situation of women in Haiti, I note that the appellant's profile is not that of a vulnerable woman, and she does not belong to any of the vulnerable groups listed above, which would make her more likely to be a victim of violence. Furthermore, the appellant is trained as a personal support worker, her family still lives in Haiti and she stated during the hearing that she could live with her parents. The appellant would not be alone and without support if she were to return to Haiti. [31] For these reasons and in light of all the evidence, I conclude that the appellant would not face a serious possibility of persecution in Haiti on a Convention ground and that, on a balance of probabilities, she would not be personally subjected to torture, to a risk to her life or to a risk of cruel and usual treatment or punishment. [32] I understand the appellant's reluctance to return to Haiti given the difficult economic conditions and her health condition. However, my jurisdiction is limited to disposing of this appeal under sections 96 and 97 of the IRPA, and I have no discretionary power to allow the appellant's claim on humanitarian and compassionate considerations. CONCLUSION [33] I dismiss the appeal and confirm the RPD's determination that the appellant is not a Convention refugee or a person in need of protection. (signed) Tammy Tremblay Me Tammy Tremblay September 9, 2020 IRB translation Original language: French Date 1 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Immigration and Refugee Board of Canada, Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Guideline issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act. Effective November 13, 1996. 4 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.) at 305. 5 Josile, Duleine v. M.C.I. (F.C., No. IMM-3623-10), Martineau, January 17, 2011, 2011 FC 39 (CanLII). 6 Dezameau, Elmancia v. M.C.I. (F.C., No. IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559 (CanLII). 7 SAR-1, National Documentation Package on Haiti, September 30, 2019: Tab 2.1: Haiti. Country Reports on Human Rights Practices for 2018, United States, Department of State, March 13, 2019; Tab 5.1: Haiti. Social Institutions and Gender Index 2014, Organisation for Economic Co-operation and Development, November 28, 2014; Tab 5.3: Violence against women, including sexual violence; state protection and support services (2012-June 2016), Immigration and Refugee Board of Canada, December 15, 2016, HTI105161.FE; Tab 5.8: Gender Issues Facing Women and Girls, Bureau des Avocats Internationaux et al., January 22, 2016; Tab 5.10: Concluding observations on the combined eighth and ninth periodic reports of Haiti, United Nations, Committee on the Elimination of Discrimination of Women, March 9, 2016, CEDAW/C/HTI/CO/8-9; Tab 5.11: Submission on the combined eighth and ninth periodic reports of Haiti to the United Nations Committee on the Elimination of Discrimination against Women, Human Rights Watch, January 20, 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-21127 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