MB6-07767

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. / N° de dossier de la SAR : MB6-07767 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision July 11, 2018 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal François Jean Denis 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 [1] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division (RPD), namely, that the appellant, XXXX XXXX XXXX, is neither a "Convention refugee" nor a "person in need of protection" within the meaning of section 97 of the IRPA. [2] The appeal is dismissed. FACTUAL BACKGROUND [3] The appellant alleges the following facts in the Basis of Claim Form (BOC Form): * She is a women's rights activist. She works for the organization XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, which is committed to an XXXX XXXX XXXX XXXX XXXX. It also helps women bolster their XXXX XXXX XXXX XXXX and denounce the injustices of which they are victims; * As a XXXX XXXX, the appellant raised women's awareness of issues related to sexually transmitted diseases and unwanted pregnancies. Displeased with her influence, some men allegedly put together a plan to kidnap her, rape her and kill her; * In XXXX 2015, her former spouse, who found her to be less obedient, tried twice to beat her. He called her names in front of the children and threatened to throw her out of the house if she continued to be as vindictive. He gave her an ultimatum to leave XXXX. * The appellant alleges to have filed a complaint with the authorities against her spouse, following which the authorities asked her spouse to leave the house. On XXXX XXXX, 2016, the appellant and the spouse divorced. * In XXXX 2016, the appellant and two work colleagues received anonymous calls threatening them on their cellphones. They filed a complaint with the authorities. * On XXXX XXXX, 2016, when back at work, her colleagues were attacked. * XXXX asked the appellant to take a step back while waiting to obtain a visa enabling her to attend a conference on women's health to be held at XXXX XXXX in XXXX 2016. * The appellant arrived in Canada on May 25, 2016. While in Canada, she learned that thugs had gone to her family's home the night of XXXX XXXX to XXXX, 2016. They then called her cellphone, which she had left with her brother. * Since she feared returning to Haiti, the appellant claimed refugee protection in Canada. Impugned decision [4] On November 22, 2016, the RPD rejected the refugee protection claim. Essentially, the RPD found that the appellant was not credible and that her testimony was not trustworthy regarding the central elements of her refugee protection claim. The decision is based on the following elements: * The RPD noted that the appellant was not spontaneous in her responses, that she confused the dates relating to her allegations, and that she could not provide a chronological sequence of the events alleged; * The RPD did not give any probative value to exhibits C-81 and C-9,2 two complaints allegedly filed by the appellant with the police, because the written account appended to the BOC Form reiterates verbatim the narrative of the facts described in the complaints, despite the fact the appellant stated that she was not in possession of a copy of the complaints when she drafted her written account; * The RPD noted inconsistencies in the evidence regarding the appellant's marital status. Sometimes she stated that she was married, while at other times she stated that she was divorced. Because of her inconsistent testimony, the RPD gave no probative value to Exhibit C-2, a certificate of divorce;3 * The statements as to the number of threats received by members of her family since she left Haiti in XXXX 2016 were inconsistent; * The RPD determined that the documentary evidence alone is not sufficient to find a serious possibility of persecution by reason of the fact that she is a woman, if she returned to Haiti. Appellant's position [5] The appellant cites several principles established by the Federal Court for assessing credibility, including the principle established in Maldonado, namely, that testimony given under oath is presumed credible and that the RPD must have serious reasons to discount testimony. She specifically argues the following reasons: * Lack of rigour in assessing the appellant's credibility; * Selective approach by the member; * Lack of thorough analysis of the refugee protection claim.4 SCOPE OF THE APPEAL [6] The RAD must determine whether the RPD's decision is correct,5 except in cases where the credibility of oral testimony is at issue and the RPD enjoys an advantage, in which case the RAD must assess the findings by using a standard of reasonableness, modified to apply to its particular context.6 In its independent assessment of the evidence, the RAD must decide whether the RPD erred as alleged. If an error of fact, of law or of mixed fact and law was made, the RPD must intervene using one of the means set out in sections 110 and 111 of the IRPA. MERITS OF THE APPEAL [7] In reviewing the appeal, I considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.7 [8] The RPD did not believe the appellant's claims that her life was at risk for the reasons alleged. After proceeding with an independent assessment of the evidence on the record, I find that the RPD rendered the appropriate decision. Here is why. Probative value of complaints filed with the police [9] The appellant submitted exhibits C-8 and C-9, two complaints filed with the police to inform them of the problems she claims to have been dealing with. The RPD did not attach any probative value to those two documents. It did not find it credible that the appellant could have reproduced, word for word, the text of the complaints from XXXX 2015 and XXXX 2016 in the written account she completed in August 2016, when she was not in possession of a copy of the complaints. [10] On appeal, it is argued that the RPD erred by drawing a negative inference from the similarity between the written account and the narrative of the incidents reported in the complaints. [11] I am not satisfied that the RPD erred. First, a comparison between the written account in the BOC Form and the one in the complaints does not reveal a similarity between the two documents, but rather, as noted by the RPD at paragraphs 16 to 20 of the decision, a verbatim reproduction. [12] Although it is possible for someone to have an excellent memory, such precision when several months passed between the time of the incidents and the drafting of the written account plants serious doubt in the decision-maker's mind. Especially when in this case, that element was not considered in isolation. The RPD noted the appellant's difficulty in responding to the panel's questions spontaneously. It also noted that the appellant confused the dates relating to her allegations and that she could not chronologically recount the sequence of events. [13] In my opinion, the RPD is in a better position than the RAD when it comes to assessing the spontaneity of testimony. Despite that advantage, after listening to the recording of the hearing, I myself also find that the appellant had difficulty testifying in a coherent manner several times. For example, I refer to her testimony when asked about the date on which she obtained a copy of the complaints filed as exhibits C-8 and C-98 and her statements when asked about the date on which she informed her employer, XXXX, that she was not returning to Haiti and the date on which she separated and divorced. [14] Although they are not determinative, I would like to add that I am surprised that exhibits C-8 and C-9 are not on letterhead and that they feature no logo or coat of arms, as is customary on documents from Haiti. Inconsistency regarding her marital status [15] In her BOC Form, the appellant states that she has been divorced from her husband since XXXX XXXX, 2016. She filed Exhibit C-2, a certificate of divorce dated XXXX XXXX, 2016.9 [16] The RPD noted that in response to the question, [translation] "Who did you live with in Haiti before you arrived in Canada?" the appellant spontaneously replied, [translation] "With my husband." In addition, in the visa application form completed on April 8, 2016, in response to question 10, the appellant states that her marital status is [translation] "married."10 [17] On appeal, it is argued that the RPD dwelled on insignificant details instead of analyzing the record as a whole.11 [18] Because of the testimony given, it is difficult for me to conclude that the RPD erred. The inconsistencies are not insignificant, as counsel argues on appeal. They are, in my opinion, central to the refugee protection claim, because the appellant alleges in the BOC Form that in November 2015, her former spouse tried to hit her because she was allegedly less obedient, that he wanted her to quit her job at XXXX and that she has been divorced since XXXX XXXX, 2016. [19] I agree with the RPD. The appellant's testimony was again confusing and inconsistent when she was asked about her marital status. Marital status [20] In this case, the appellant's marital status is also, in my opinion, an important element of her refugee protection claim. She claims to have had problems within her own family and that her spouse tried to hit her and asked her to quit her job. [21] In listening to the recording of the hearing, I noted that when she was asked about the complaint filed as C-8, the appellant's testimony was muddled. Allow me to explain. [22] According to one of the versions that she gave, the appellant allegedly divorced her spouse in XXXX 2016. Exhibit C-2, a certificate of divorce, was filed to corroborate that fact. However, on XXXX XXXX, 2015 (Exhibit C-8), the appellant reportedly filed a complaint against [translation] "her former spouse." When asked why the complaint stated [translation] "former spouse," when she got divorced only in XXXX 2016, the appellant replied [translation] "I was divorced." The member asked her, [translation] "in November, you were divorced?" to which the appellant answered, "Yes."12 [23] Later, at the hearing, when the member asked the appellant to confirm the date of her divorce, she initially answered [translation] "XXXX XXXX, 2015," but then stated "XXXX XXXX, 2016."13 [24] The manner in which a refugee protection claimant testifies may be taken into account in their credibility assessment. When they have difficulty providing adequate, direct or consistent responses, this undermines their credibility.14 I also cannot overlook that, in his submissions before the RPD, counsel recognized his client's difficulty in testifying. Probative value of the certificate of divorce [25] At paragraph 33 of the decision, the RPD states: [Translation] Given the claimant's overall lack of credibility regarding her marital status, the panel did not believe that the claimant separated and divorced in the alleged circumstances. As a result, the panel gives little weight to the certificate of divorce to demonstrate the allegations in support of her refugee protection claim. [26] I agree with the RPD's finding that the appellant failed to establish that she separated and divorced in the circumstances alleged. This appears to me to be especially true considering the information contained in the certificate of divorce issued on XXXX XXXX, 2016, leading me to seriously be of the opinion that the appellant's separation from her spouse occurred and that the divorce proceedings were launched well before XXXX XXXX, 2015, as claimed by the appellant. I specifically refer to the fact that the certificate of divorce states the following: [translation] Given the summons, served to us on XXXX XXXX, 2015, by a bailiff...at the request of XXXX XXXX....15 [27] This information, together with inconsistent testimony, leads me to conclude that the appellant has not established that the RPD erred. Residual risk in Haiti by reason of her membership in the particular social group of [translation] "XXXX XXXX XXXX [28] According to the RPD, the appellant did not establish a serious possibility of persecution by reason of her gender, were she to return to her country. In this regard, the RPD considered the following statements of the Federal Court in Dezameau:16 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". [29] The RPD also considered the following factors: despite the devastation from Hurricane Matthew, her mother, daughter and son continue to live in Camp-Perrin. The evidence is not sufficient to establish that the appellant is alone, without any resources. [30] On appeal, it is argued that Dezameau does not apply in this case. According to the submissions made, the documentary evidence indicates that violence against women is widespread and does not apply only to women living alone in a tent or in a precarious situation.17 [31] After assessing all of the documentary and testimonial evidence, taking into account the appellant's personal and family situation, the criteria established in the case law, specifically in Dezameau18 and Josile,19 and Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution,20 I am of the opinion that the appellant has not established that the RPD erred in concluding that she failed to establish a serious possibility of persecution by reason of her gender, were she to return to Haiti. [32] Other than the fact that she fears the thugs who allegedly threatened her because of her work, which was not established in a probative manner, the appellant did not indicate, either verbally or in writing, any other reason why she fears returning to Haiti. She did not testify that her mother or daughter have problems because they are women. [33] The framework of analysis suggested in Guideline 4 states that "[t]he gender-defined group cannot be defined solely by the fact that its members share common persecution." [34] Recently, in a case concerning a Haitian woman,21 Justice Roussel of the Federal Court notes the importance of reviewing the particular situation of the refugee protection claimant. The Court noted that "country reports alone were normally not a sufficient basis for granting refugee status, because they are not specific to the claimant's situation." CONCLUSION [35] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of section 97 of the IRPA. [36] The appeal is dismissed. Maria De Andrade Me Maria De Andrade July 11, 2018 Date IRB translation Original language: French 1 RPD record, page 134. 2 RPD record, page 135. 3 RPD record, page 122. 4 Appellant's record, page 24. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 6 X (Re), 2017 CanLII 33034 (CA IRB). 7 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, IRB, Ottawa, November 13, 1996. 8 Hearing CD, 1:13 to 1:20:12. 9 RPD record, page 122. 10 RPD record, pages 53 and 110. 11 Appellant's memorandum, page 30. 12 Hearing CD, 1:20:12 to 1:20:42. 13 Hearing CD, 1:21:41 to 1:25:21. 14 Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303. 15 RPD record, page 122. 16 Dezameau, Elmancia v. M.C.I. (F.C., No. IMM-4396-09), 2010 FC 559. 17 Appellant's memorandum, page 30. 18 Dezameau, Elmancia v. M.C.I. (F.C., No. IMM-4396-09), 2010 FC 559. 19 Josile v. Minister of Citizenship and Immigration, (No. IMM-3623-10 ), 2011 FC 39. 20 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, IRB, Ottawa, November 13, 1996. 21 Kettia Joseph et al. v. Canada (Minister of Citizenship and Immigration), 2018 FC 638. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-03766 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB6-07767 9 RAD.25.02 (7 février 2014) Available in English