MB9-16446

RAD File No. / No de dossier de la SAR : MB9-16446 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 at Ottawa, ON Appel instruit à Date of decision December 15, 2020 Date de la décision Panel Me Philippe Rabot Tribunal Counsel for the person who is the subject of the appeal Me Abdou Gaye 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] The appellant, XXXX XXXX, is a citizen of Haiti. He claims to have been threatened by three individuals because of a disagreement about the ownership of a parcel of land that he and two cousins allegedly inherited from their grandfather. Six years after that incident, those individuals are apparently still likely to attack him if he returns to Haiti because the disagreement still exists. The Refugee Protection Division (RPD) did not believe him, finding that his decision to leave Haiti had already been made even before he was allegedly threatened. The appellant alleges that the RPD erred, although he admits to borrowing a significant amount of money one month before the incident. [2] I consider that the RPD was justified. The appellant left Haiti for Brazil, looking for a job, not because he was threatened. In any case, a risk as a result of a land conflict is not a sufficient reason for Canada to grant protection to the appellant, as he and his two cousins could eliminate the risk by giving up the desired land. The appeal is therefore dismissed. BACKGROUND [3] Based on the appellant's refugee protection claim,1 he inherited from his grandfather a parcel of land in Drouet, in the locality of Poterie. Two of his cousins were also named joint heirs. However, the three owners of the neighbouring land alleged that this parcel was part of their property. They allegedly threatened the appellant initially in 2009 and 2010. Then, on March 7, 2014, they met the appellant and threatened to kill him. The next night, masked individuals went to his home in the middle of the night. He could not recognize them and they left. The appellant was, however, convinced that it was the neighbours and that they had come to kill him and his family. [4] At that point, the appellant and his family left their home and went to live in another locality. He also took steps to leave the country. He presented a visa application for Brazil in May 2014. That application was approved the next month. The appellant arrived in Brazil in XXXX 2014. His spouse and children remained in Haiti. [5] The appellant spent almost two years in Brazil and then one year in the United States before coming to Canada. He alleged that the issue regarding land ownership had still not been resolved and that the neighbours were still likely to kill him if he returned to Haiti. [6] The RPD found that the issue with the neighbours did not explain his decision to leave Haiti.2 The panel noted that the appellant borrowed a significant amount of money from his lawyer one month before he was allegedly threatened by his neighbours and found that the purpose of the loan was to enable him to purchase an airplane ticket for Brazil. The RPD also noted that the appellant's two cousins had taken legal action to have their property rights recognized, but that they had not been subjected to threats by the neighbours. Thus, it was unlikely that they would attack the appellant if he was returned to Haiti. [7] The appellant alleged that the RPD misinterpreted the facts.3 He maintained that he had not yet made the decision to leave the country when he borrowed money. In addition, the neighbours were more likely to attack him than his cousins since he was the most familiar with the situation of the land they covet. [8] The appellant indicated that he has new evidence to submit. However, the only documents submitted were those that are already part of the record before the RPD. He is also requesting that an oral hearing be held for his appeal. However, that is not possible, according to subsection 110(6) of the Immigration and Refugee Protection Act (the Act), because there is no new evidence to consider. ANALYSIS [9] I conducted my own analysis of the evidence on the record, especially by listening to the recording of the RPD hearing in its entirety. In my opinion, the RPD did not err in its analysis. Furthermore, the risk invoked by the appellant relates to a land conflict, which is not a valid reason to grant him protection in Canada. It is his responsibility to take all necessary measures to eliminate the risk that they will attack him, including giving up the land that is allegedly at the origin of the conflict with the neighbours. [10] The fact that he took out a large loan from his lawyer4 could only have had one purpose, namely, to enable him to have the necessary funds to go to Brazil, which the appellant himself recognized. At the time, many Haitians seeking employment went to Brazil on invitation by the Brazilian president to work on the construction of the facilities for two international sporting events: the 2014 FIFA World Cup and the 2016 Summer Olympics in Rio de Janeiro. Once these events were over, their services were no longer needed. I believe that is what prompted the appellant to leave his country, leaving his family in Haiti. [11] It is not a trivial fact that the appellant's two cousins who inherited land with him have never been subjected to threats by the neighbours, despite having initiated legal action to try to resolve the dispute. I grant no credibility to the appellant's claim about why the neighbours would be more likely to attack him than his cousins. He failed to provide a satisfactory explanation. [12] Furthermore, even if there were any risk to the appellant as a result of this issue, this risk would not in itself be sufficient to establish that he is a person in need of protection under section 97 of the Act. It is sufficient that the appellant and his cousins give up their property rights to eliminate the risk. In such circumstances, the neighbours would no longer have any motivation to attack the appellant. [13] No doubt this is an option that the appellant would not like to consider. However, he cannot claim that there is a risk to his life in order to avoid being returned to Haiti if he is not willing to take the necessary steps to eliminate this risk. Property rights are not recognized as a fundamental right in Canada. It is not embedded in the Canadian Charter of Rights and Freedoms. In Kenguruka,5 the Federal Court states: "It is clear that a property rights claim is not a basis for a refugee claim." This was the same conclusion reached by the Court in Molefe,6 concerning a conflict between members of the same family about the ownership of property, as in the case of Habonimana.7 Although they are decisions concerning the right to claim refugee status, I find that the same principle should apply with respect to whether a refugee claimant can be recognized as a person in need of protection. [14] Furthermore, I note that the appellant is not invoking any of the five grounds set out in section 96 of the Act as the basis of his alleged fear. Therefore, he cannot be recognized as a refugee either. CONCLUSION [15] The appellant did not establish that a property conflict between himself and his neighbours would put his life at risk or subject him to a risk of cruel and unusual treatment or punishment should he return to Haiti at this time. Furthermore, the existence of such a conflict is not a valid reason to support his refugee protection claim. [16] The appeal is therefore dismissed. (signed) Philippe Rabot Philippe Rabot December 15, 2020 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) record, Appellant's written account, pages 19 to 21. 2 Ibid., RPD reasons and decision, pages 3 to 9. 3 P-2, Appeal record, Appellant's memorandum, pages 13 to 22. 4 SPR-1, RPD record, Exhibits P-3: received under private signature, page 87. 5 Kenguruka v. Canada (Citizenship and Immigration), 2014 FC 895. 6 Molefe v. Canada (Citizenship and Immigration), 2015 FC 317. 7 Habonimana v. Canada (Citizenship and Immigration) 2014 FC 1172. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-16446 RAD.25.02 (January 2020) Disponible en français 5 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