MC0-08676

RAD File No. / No de dossier de la SAR : MC0-08676 MC0-08677 / MC0-08678 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 4, 2021 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the persons who are the subject of the appeal George Ghalo Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION OVERVIEW [1] The appellants XXXX XXXX and XXXX XXXX are citizens of Haiti. Their minor daughter XXXX XXXX XXXX is a citizen of Brazil. They are appealing a decision of the Refugee Protection Division (RPD) that rejected their claims on the basis that the appellants with Haitian citizenship have an internal flight alternative (IFA) in Port-au-Prince and that, in the case of the minor appellant, it was not established that she faced a serious possibility of persecution or a risk to life in Brazil, her country of citizenship. [2] The male appellant was designated to represent his minor daughter. [3] The appellants did not append new documents to their appeal record. They are challenging the decision of the RPD, arguing that it erred in the assessment of their credibility by concluding that they had failed to establish a prospective risk in Haiti under section 96 or section 97 of the Immigration and Refugee Protection Act (IRPA) and by determining that they have an IFA in Port-au-Prince.1 [4] They are asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD and allow their refugee protection claims or, in the alternative, to refer the matter to the RPD for redetermination of their claims by a different panel.2 [5] There is a combination of reasons leading me to conclude that the RPD erred in its analysis and that this decision must be set aside. [6] The appeal is allowed. BACKGROUND [7] Before they left Haiti, the appellants lived in the commune of Gonaives. The male appellant alleges that he was attacked and threatened in 2010 and 2011 during the presidential elections because he supported and campaigned for the Réponse Paysan [peasant response] party in Gonaives. After being attacked on XXXX XXXX XXXX 2011, he took refuge in Saint-Marc, his hometown. In XXXX 2012, after he had returned to Gonaives and while he was organizing a cholera awareness activity, he was attacked again by the same people. [8] Fearing for his safety, he fled to the Dominican Republic in XXXX 2013 and then to Brazil in XXXX 2013. [9] It is alleged that in XXXX 2012, the female appellant was sexually assaulted by men who were looking for her husband. Following the assault, the female appellant went to stay with her mother in XXXX. [10] The female appellant alleges that in XXXX 2013, her father was murdered by her uncle and her cousin. They allegedly ran after her with a machete to kill her. In XXXX 2014, the female appellant fled to Port-au-Prince, fearing they would kill her. [11] In XXXX 2015, the female appellant rejoined her husband in Brazil because she was afraid of being found by her cousin and uncle. She gave birth to her daughter on XXXX XXXX XXXX2016. [12] On XXXX XXXX XXXX 2016, the female appellant and her daughter left Brazil. She arrived in the United States on XXXX XXXX XXXX 2016. On XXXX XXXX XXXX 2016, the male appellant left Brazil and arrived in the United States on XXXX XXXX XXXX 2016. The appellants arrived in Canada in XXXX 2017. They allege a fear of returning to Haiti because those who threatened them in 2011 and 2012 were asking for them. They cannot return to Brazil for fear of being victims of racism by reason of their Haitian origin. XXXXIntervention before the Refugee Protection Division [13] On November 8, 2019, the Minister of Immigration, Refugees and Citizenship sent a notice of intervention seeking to have the appellant excluded pursuant to Article 1E of the Convention.3 The Minister submits the following: * The male appellant's name and passport number appear on the list of 43,871 Haitian nationals to whom the Brazilian government granted permanent residence on November 11, 2015; * The rights and obligations of permanent residents are similar to those of Brazilian nationals in the areas of health care, education and employment, among others; * Loss of status occurs only at the end of an administrative proceeding during which the individual has the right to [translation] "adversary principles and adequate defence." * The parents of a Brazilian child can obtain a residence visa for Brazil and can obtain Brazilian citizenship through naturalization after living in Brazil for one year; * The female appellant should also be excluded because she has status in Brazil through her child. That status confers rights upon her similar to those enjoyed by Brazilian nationals. This residence visa will allow her not only to return to Brazil, but also to have access to Brazilian citizenship one year after her arrival. * In Zeng, the Federal Court of Appeal ruled that the exclusion pursuant to Article 1E of the Convention can be applied to a claimant if the claimant had the opportunity to obtain status in a third country and did not do so. * The male appellant had valid status in Brazil when he filed his claim for refugee protection. The claimants' voluntary abandonment of permanent resident status demonstrates a conspicuous lack of subjective fear that should be fatal to their claims. * The appellants did not demonstrate that the Brazilian state is unable to provide adequate protection for them and their minor daughter. Impugned decision [14] Regarding the Article 1E exclusion, the RPD stated at paragraph 22 that [translation] "... the panel did not have to rule on the possible exclusion of the claimants under Article 1E... as they were unable to establish a serious possibility of persecution." [15] As for real or imputed political opinion, the panel rejected the appellants' assertions to the effect that their lives are in danger in Haiti because, among other things, they have an IFA in Port-au-Prince and because it did not believe that the people who threatened them [translation] "would still be interested in them, at least not to the point of expending efforts and resources to find the claimants." [16] As for the female appellant, the RPD did not believe her assertions regarding the risk posed by her uncle or her cousin over land owned by the family. As for her fear of being raped again because she is a woman, the RPD decided that she had not established that her fear has a nexus to one of the grounds under section 96 of the IRPA. [17] Regarding the risk alleged for their daughter, who is a citizen of Brazil, the RPD rejected the appellants' assertions that their daughter would be unable to live there safely due to the racism suffered by Haitians. Arguments submitted on appeal [18] It is argued that the RPD committed numerous errors, including the following: * rejecting their assertions as to the serious possibility of persecution for reasons of real or imputed political opinion; casting doubt on the male appellant's return to Gonaives;4 * not believing that the criminals would still be interested enough in the appellants to expend efforts and resources to track them down in Port-au-Prince;5 * finding the female appellant's testimony not to be credible regarding the threats from her uncle and cousin; not taking into consideration the fact that the female appellant was nervous when she testified, which explains her vague and imprecise answers; * concluding that Port-au-Prince would be a viable IFA whereas the documentary evidence and female appellant's testimony show the opposite; * concluding that there is no serious possibility of persecution for the female appellant in Port-au-Prince by reason of her being a woman because she benefits from the presence of her husband and her family; * concluding that the discrimination potentially faced by their daughter, who is a Brazilian citizen, would not amount to persecution. * The panel incorrectly applied [translation] "the Zeng factors in its analysis of the application of the 1E exclusion and carried out a selective and flawed review of the testimonial evidence, wrongly substituted its own personalized knowledge to justify its reasoning, did not apply the Minister's Guidelines appropriately and made sweeping conclusions not supported by the evidence."6 SCOPE OF THE APPEAL [19] In this case, I will determine whether the determination of the RPD is correct. ANALYSIS [20] Here are the reasons why the RPD's determination must be set aside: Exclusion under Article 1E [21] In paragraph 22, the RPD wrote that [translation] "... the panel did not have to rule on the possible exclusion of the claimants under Article 1E... as they were unable to establish a serious possibility of persecution." [22] On appeal, it is submitted that: [Translation] The panel misapplied the Zeng factors in its analysis of the application of the 1E exclusion and carried out a selective and flawed review of the testimonial evidence, wrongly substituted its own personalized knowledge to justify its reasoning, did not apply the Minister's Guidelines appropriately and made sweeping conclusions not supported by the evidence.7 [23] There is no error in the RPD, a specialized tribunal, using its specialized knowledge as long as it informs the claimants of it. I noted from the transcript of the hearing that on several occasions, when the status of Haitians in Brazil was being discussed, the panel shared its specialized knowledge. [24] In this case, I am surprised that the appellants are criticizing the RPD for doing this as it does not seem to have prejudiced them in any way; on the contrary, I noted that, in several instances, when putting questions to the male appellant, the panel suggested answers, even going so far as to suggest to him that his status was temporary, despite the fact that his testimony was contradictory on that subject. [25] The appellant lived in Brazil from XXXX 2013 to XXXX 2016. His name and passport number are on the list of Haitians appended to the November 2015 decree by which the Brazilian authorities allowed Haitians to obtain permanent residence in Brazil. This is prima facie evidence that the appellant has permanent residence in Brazil. [26] The RPD decided not to examine the question of exclusion because the appellants have an IFA in Port-au-Prince and because, for the RPD, their testimony regarding their fear in Haiti raises a number of credibility issues. [27] I understand that the RPD wanted to take a pragmatic approach, but it is not one that I can endorse. In my view, section 98 of the IRPA provides that a person who is subject to an exclusion "is not a Convention refugee or a person in need of protection." Consequently, the RPD needed to address the question of exclusion and provide sufficient reasons in that regard. I base my reasoning on the Federal Court's statements in Binder Singh.8 [28] When the panel has before it prima facie evidence of status conferring rights and obligations similar to those held by nationals, the claimant has the burden of establishing that he or she does not have that status.9 And the RPD must provide sufficient reasons to explain why the exclusion should not apply. This is especially true in this case because the appellants have a daughter who is a Brazilian citizen and, as the panel stated at the hearing, the evidence on the record suggests that the appellants were able to extend their status in Brazil, possibly obtain permanent residency in the case of the female appellant because they are the parents of a Brazilian citizen, and ultimately obtain Brazilian citizenship through naturalization. [29] However, that is not my only reason for setting the decision aside. Fear in connection with the male appellant's political activities [30] The RPD believed the following facts: * The male appellant supported and campaigned for the Réponse Paysan in the 2010/2011 presidential elections; * The male appellant was threatened in 2011 by reason of his political activities, and by the same group in 2012 due to his participation in a cholera awareness activity; * The female appellant was sexually assaulted in XXXX 2012 by the people who assaulted her husband. [31] After questioning the male appellant's behaviour in returning to Gonaives despite being threatened there in 2011, the RPD states as follows: [translation] "... if the claimants were to return to live in Gonaives, near where these individuals are presumed to reside, the risk of retaliation may be present, but what if the claimants were to move to Port-au-Prince instead?" The RPD did not believe the male appellant's claims that his assailants still had an interest in them, at least not to the point of expending efforts and resources to find them if they relocated to Port-au-Prince. [32] According to the appellants, this is an erroneous conclusion because the panel did not sufficiently consider the proof of the contrary provided by the documentary evidence, which points to a culture of revenge, and their credible testimony. [33] For my part, I note that, despite a certain prevailing culture of vengeance in Haiti, the documentary evidence indicates that "the severity and likelihood of an act of revenge diminishes with the passage of time and in function of the geographical distance and the power of the armed group threatening revenge."10 [34] The problem I observe here is that the RPD accepts that [translation] "the risk of retaliation may be present" in Gonaives near their place of residence, which suggests that the passage of time may not be a significant factor in this case, but it concludes that Port-au-Prince is a safe location for the appellants. However, because of an analysis I consider flawed, among other things, with respect to the female appellant's fear based on her membership in the particular social group formed by women, I am unable to uphold that conclusion. Risk posed by the female appellant's uncle and cousin over land belonging to the female appellant's father [35] The female appellant stated that her uncle and her cousin killed her father in XXXX 2013. They threatened to kill her with a machete. [36] The RPD did not believe the female appellant's allegations that such events occurred. According to the RPD, her testimony was weak and lacking in credibility. She had great difficulty answering the RPD's questions. Her responses were often vague and imprecise; in addition, the land was allegedly sold by her mother in 2015. [37] The female appellant submits that the RPD erred by failing to consider the possibility that the stress of the hearing might be the explanation for her vague and imprecise responses. She adds that the RPD erred by drawing an adverse inference because it considered that a [translation] "... police investigation should have been opened. The lack of evidence concerning her father's alleged murder, or at least the causes of his death, undermines the female claimant's credibility."11 [38] With respect, the RPD erred by drawing an adverse inference from the lack of evidence concerning her father's alleged murder. Exhibits P-1, an extract from the minutes of the registry of the XXXX peace court, and the death certificate (P-3) submitted to establish the murder of the female appellant's father indicate that he died after being mutilated. Yet I note that the RPD drew no inference regarding the validity of, or the weight to be given to, these documents. It also erred by presuming that a police investigation should have been opened, whereas the documentary evidence points to significant gaps in the Haitian justice system.12 But there is more. Fear by reason of her membership in the particular social group formed by women [39] The female appellant alleges that she fears returning to Haiti because she is afraid of being raped again by criminals because she is a woman. She states that she fears the people who raped her before, but also on the basis of the generalized insecurity, notably in Port-au-Prince. [40] After pointing to the statements of Justice Pinard in Dezameau:13 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." The RPD concludes in paragraph 42 of its decision as follows: [translation] "Accordingly, the panel is of the opinion that the female claimant was unable to show that her alleged fear has a nexus to one of the five Convention grounds, and as such, section 96 (social group of women) of the IRPA does not apply." [41] The female appellant makes numerous arguments against the RPD's analysis relating to her fear based on her membership in the particular social group formed by women. Relying on Dezameau, it is argued that the RPD committed [translation] "an error of law when it concluded that a generalized risk of harm prevented the female claimant from asserting that she is a victim of persecution." [42] It is also submitted that the RPD erred by concluding that [translation] "the female appellant failed to establish that she faced a serious possibility of being a sexual assault victim again due to the fact that she was unable to show that her alleged fear has a nexus to one of the five Convention grounds, and as such, section 96 (social group of women) of the IRPA does not apply." [RAD's emphasis]. [43] I also agree with the RPD that an allegation of membership in a particular social group is insufficient to conclude that there is a serious possibility of persecution and that "country reports alone [are] normally not a sufficient basis for granting refugee status, because they are not specific to the claimant's situation."14 However, I am of the opinion that paragraph 42 of the RPD decision is problematic and confusing. Fear of being raped has a nexus to one of the five Convention grounds. [44] The particular circumstances of every individual female refugee protection claimant, including where she will live, her social network, the presence of a male or a husband-although the latter is not, in my opinion, a determinative factor as it appears to have been in this case-are factors to be taken into account in assessing the female appellant's prospective risk. [45] In this case, I cannot substitute the determination that should have been rendered, as the evidence does not allow me to properly assess what happened during the appellant's stay in Port-au-Prince between XXXX 2014 and the date of her departure for Brazil in XXXX 2015. Internal flight alternative [46] The RPD was of the opinion that even if it had considered the claimants and their allegations credible, the appellants did not meet their burden of proving that there was no internal flight alternative for them in Port-au-Prince. [47] The RPD considered it [translation] "unlikely" that those who assaulted the appellants would actually be able to threaten them again. It did not believe the appellants' statements to the effect that the criminals would still be after them and would still be motivated to take revenge and attack them. [48] The appellants point to the prevailing insecurity throughout the region, notably in Port-au-Prince. [49] It is true that the IFA is a determinative issue in any refugee protection claim. However, it must take into account the overall context of the country and the specific circumstances of the appellants. In this case, I find that while the RPD took their circumstances into account, its reasons are insufficient, particularly with respect to the risk faced by the female appellant and the second prong of the IFA. [50] In my opinion, these are sufficient grounds for concluding that the decision that was rendered is not correct. I am not in a position to substitute the determination that should have been made, as the evidence at my disposal is insufficient. The records are referred back to the RPD for redetermination by another panel. CONCLUSION [51] For these reasons, I set aside the RPD's determination that XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX are neither "Convention refugees" nor "persons in need of protection" within the meaning of section 97 of the IRPA. [52] The appeal is allowed. (signed) Maria de Andrade Me Maria De Andrade March 4, 2021 Date IRB translation Original language: French 1 P-2, Appellants' record, Appellants' memorandum, pages 24 and 25. 2 Ibid., at page 40. 3 SPR-1, Refugee Protection Division (RPD) record, pages 104 to 113. 4 P-2, Appellants' record, Appellants' memorandum, pages 26 and 27. 5 Ibid., at page 28. 6 Ibid., page 39, at paragraph 107. 7 Ibid., page 39, at paragraph 107. 8 Binder Singh v. Canada (Citizenship and Immigration), 2016 FC 155, at paragraph 50. 9 Canada (Citizenship and Immigration) v. Tajdini, 2007 FC 227, at paragraph 36. 10 SPR-1, RPD record, National Documentation Package (NDP) on Haiti, September 30, 2019, Tab 7.6. 11 P-2, Appellants' record, Appellants' memorandum, page 29, at paragraph 70. 12 SPR-1, RPD record, NDP on Haiti, September 30, 2019, section 9. 13 Dezameau, Elmancia v. M.C.I. (F.C. No. IMM-4396-09), Justice Pinard, May 27, 2010; 2010 FC 559, at paragraph 29. 14 Kettia Joseph v. Canada (Citizenship and Immigration), 2018 FC 638, paragraph 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0 08676 MC0-08677 / MC0-08678 RAD.25.02 (January 2020) Disponible en français 3 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