MB7-25500

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 : MB7-25500/MB7-25501 MB7-25502/MB7-25503 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision April 1, 2019 Date de la décision Panel Me Maria de Andrade 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] The appellants, XXXX XXXX XXXX and XXXX XXXX, as well as their minor children, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are citizens of Haiti. The minor child XXXX XXXX XXXX is also a citizen of the United States. They are appealing against a Refugee Protection Division (RPD) decision rejecting their refugee protection claims on the grounds that it erred when assessing their credibility and prospective risk. [2] They included seven new documents in their appeal record and are asking the Refugee Appeal Division (RAD) to decide whether a hearing is necessary. [3] After an independent review of the evidence, I conclude that the RPD rendered the correct decision, despite certain deficiencies in the credibility assessment. [4] The appeal is dismissed. BACKGROUND [5] The appellants are from Pétion-Ville, which is in the Port-au-Prince region. Before they left Haiti, the female appellant worked for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The male appellant had been unemployed for more than a year. Prior to that, he worked for an XXXX. [6] The female appellant alleges that she received an anonymous call on XXXX XXXX, 2017, from an individual demanding XXXX XXXX XXXX gourdes. If she agreed, she would receive instructions as to when and where to bring the money. [7] From XXXX XXXX, 2017, to XXXX XXXX, 2017, the male appellant was on vacation in Canada because he was unemployed and felt depressed. During that period, the female appellant allegedly received five anonymous calls. [8] On XXXX XXXX, 2017, when she was in Jérémie for work, the female appellant supposedly received another anonymous telephone call demanding the money; if she did not comply, her family would suffer the consequences. The caller stated that he knew her family's routine. [9] The male appellant tried to file a report with the police but they did not accept it, stating that the female appellant had to file the report. [10] On XXXX XXXX, 2017, when they were driving home, the appellants were hit by another car. They immediately went to the police station to file a report about the incident, but when they got there, they saw that the car that had tried to hit them was in front of the station. The appellants went to the home of Mr. XXXX parents, who live elsewhere in Pétion-Ville. [11] Having planned to vacation in Canada in XXXX 2017, the appellants took the opportunity to flee the country and claim refugee protection in Canada. ADMISSIBILITY OF NEW EVIDENCE [12] The appellants included the following documents in the appeal memorandum: * A-1: Female appellant's identity card from the XXXX * A-2: Travel advisory, France diplomatique, updated XXXX XXXX, 2017 * A-3: Government of Canada travel advisory, updated XXXX XXXX, 2018 * A-4: Article titled "Bilan 2016 : L'insécurité, une patate chaude en Haïti" [2016 summary: passing the buck with security in Haiti] December 29, 2016 * A-5: Article from Le Nouvelliste newspaper, titled "Le viol n'est pas un acte sexuel : c'est un crime" [rape isn't a sexual act, it's a crime], July 20, 2017 * A-6: Article from the Internet: http://elsie-news.over-blog.com/article-6285625.html. "Le viol en Haïti, une honte pour tous les hommes" [rape in Haiti, a disgrace for all men] * A-7: Article titled "Haïti : Deux agents de l'UDMO et trois bandits armés tués lors d'affrontements à Grand Ravine" [Haiti: two UDMO agents and three armed criminals killed in clashes in Grand Ravine], November 14, 2017 [13] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) stipulates that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection, which in this case was on November 15, 2017. [14] In Canada (Citizenship and Immigration) v. Singh,1 the Federal Court of Appeal states the following: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. [15] The factors established in Raza are credibility, relevance, newness and materiality. With respect to the latter, in Singh, Justice De Montigny indicates that there may be a need for the RAD to make some adaptations. [16] In their memorandum, the appellants argue: [translation] "In light of the facts and the new evidence presented, and considering the female appellant's personal situation and the situation in the country, I believe that she should be given the benefit of the doubt in this case."2 [17] With respect, these arguments do not constitute full and detailed submissions regarding how the evidence submitted meets the legislative requirements and how it relates to them. Despite the fact that rule 3 of the Refugee Appeal Division Rules3 was not followed, I reviewed the documents submitted and I am of the opinion that they are not admissible as new evidence. Here is why. [18] To begin, exhibits A-1, A-4, A-5 and A-7 are documents that existed before the refugee protection claim was rejected. Some of the documents (A-1, A-4, A-5) are dated prior to the hearing. In that context, and not having any arguments to explain why these documents were not submitted before the refugee protection claim was rejected, I conclude, having reviewed them, that they do not meet the legislative requirements. [19] Next, exhibits A-2 and A-3 are dated after the refugee protection claims were rejected. However, these documents do not meet the newness criteria established by case law. Allow me to explain. In both cases, these are reports prepared by the French and Canadian governments, warning travellers to remain vigilant because of crime, natural risks, and issues with sanitary conditions in Haiti. They are not admissible, in my opinion, because they are only an update to previous documents and do not shed new light on the security situation in Haiti. In summary, they simply provide information that is already contained in the National Documentation Package (NDP). [20] Finally, Exhibit A-6, the article titled "Le viol en Haïti, une honte pour tous les hommes," published online at http://elsie-news.over-blog.com/article-6285625.html, is dated April 2007. While this article is interesting, it does not meet the legislative or jurisprudential requirements. Holding a hearing [21] A RAD hearing will be held only if new evidence is presented and if the "new evidence," assuming it is admitted, raises a serious issue with respect to the credibility of the person who is the subject of the appeal and would justify setting aside the determination of the refugee protection claim. In this case, the new documents included in the appeal memorandum were found to be inadmissible, so the RAD cannot hold a hearing. SCOPE OF THE APPEAL [22] Except in cases where the credibility of oral evidence is at issue and the RPD enjoys a meaningful advantage, the RAD must determine whether the RPD decision is correct.4 If an error of fact, of law or of mixed fact and law was made, the RAD must intervene using one of the means set out in sections 110 and 111 of the IRPA. If I had to give deference to the RPD because it enjoys a meaningful advantage, I will indicate it in my analysis. However, deference to the RPD does not in any way equate to a blind endorsement of its findings.5 MERITS OF THE APPEAL Section 96 of the Immigration and Refugee Protection Act [23] The female appellant argues that she fears that she and her young daughter will be raped if they return to Haiti. In my assessment of the alleged risk, I considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.6 [24] With respect to the fear of being persecuted by reason of their membership in the social group of "women," the RPD concluded that the female appellant did not discharge her burden of establishing a serious possibility of persecution for her and her daughter. [25] The following arguments are made in the appeal memorandum: [translation] 12. The fear of being raped in Haiti is constant, in particular for the female appellant and her young daughter, even though she is married, but her husband would not always be with her and the criminals are ready to do anything when they want to hurt you and nothing will stop them.7 21. The female appellant and her daughter are vulnerable persons, cannot risk their lives by going to Haiti where criminals rule as masters and lords. Their lives would be in danger and the entire family is at risk of being raped, kidnapped, detained and even killed.8 [26] I reviewed all of the evidence and I am of the opinion that the RPD rendered the correct decision with respect to the risk of persecution by reason of membership in the social group of "women." Here is why. [27] Country reports alone are generally not a sufficient basis for granting refugee status, because they are not specific to the claimant's situation.9 [28] Guideline 4 states the following: "The gender-defined group cannot be defined solely by the fact that its members share common persecution." In Dezameau, Justice Pinard states: 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] In Josile,10 the Federal Court indicates that when assessing prospective risk for a female claimant who alleges a fear by reason of her membership in the social group of "women," it is important to also consider the claimant's profile, her family situation, including whether she has male protection,11 and where she would be living. [30] As the RPD noted, the female appellant is married and was living with her husband, children and parents in Pétion-Ville. Other than the alleged incidents, which the RPD did not believe and which I will come back to, the female appellant did not note any issues related to her gender. I note that in this case, the evidence demonstrates that the female appellant also worked outside of Port-au-Prince. After looking at the female appellant's passport,12 it is clear that she travelled often and returned to Haiti each time. Her mother still lives in Haiti, at the same location, and the female appellant did not testify about her having encountered any problems because of her gender. [31] For these reasons, I conclude that the RPD's analysis under section 96 of the IRPA is not erroneous. Section 97 of the Immigration and Refugee Protection Act [32] The RPD analyzed the prospective risk in connection with the other alleged incidents under section 97 of the IRPA. The appellants fear being kidnapped or extorted if they were to return. Their problems allegedly began in XXXX 2017, when an unknown individual contacted the female appellant to demand money. [33] The RPD noted certain credibility issues and found that the appellants did not [translation] "present evidence that established, on a balance of probabilities, that they would be personally subjected" to one of the risks set out in section 97 of the IRPA. [34] The appellants did not present arguments against the RPD's conclusion to the effect that they did not discharge their burden of proof under section 97 of the IRPA. [35] Having assessed all of the evidence and listened to the recording of the hearing, I confirm that the RPD's conclusion is correct with respect to their burden of proof under section 97 of the IRPA. Before starting my analysis on this point, I would like to make a few remarks about the RPD's credibility findings. It highlighted the following points: * Inconsistency between the female appellant's spoken and written statements about the calls received during the period when her husband was in Canada. * The RPD criticized the fact that the female appellant could not specify how the unknown individual who contacted her in XXXX 2017 obtained her cellphone number. * The appellants did not inform the police about their problems. The female appellant continued to work and the appellants continued to live in Pétion-Ville. * In summary, the RPD believed that the circumstances in this case suggest that the appellants were planning to leave Haiti and their departure was organized before the supposed calls took place. According to the RPD, the coincidental timing of the male appellant's trip to Canada, the preparations for the family trip and the alleged incidents is not credible. * There is no evidence to suggest that the female appellant's parents, who lived with the family, have received threats about them since they left for Canada. Inconsistency in the female appellant's statement about the calls received [36] The RPD found the female appellant's statements were inconsistent with respect to the supposed threatening calls she received between XXXX XXXX, 2017, and XXXX XXXX, 2017. [37] In her Basis of Claim Form (BOC Form), the female appellant alleges that she received five anonymous calls during the period when her husband was in Canada. However, at the hearing, she testified that that period was [translation] "calm and peaceful." The female appellant justified the inconsistency by the fact that she had not answered the telephone and the number was not displayed. [38] On appeal, it is being argued that the female appellant was not reciting her BOC Form but was answering the panel's questions. [39] The RPD did not err in noting that the statements are inconsistent. If, as the female appellant alleges in her BOC Form, the calls were suspicious, it is surprising that she would not have spontaneously mentioned them during her testimony and that she would state that the situation was calm. In addition, her explanation that she did not think of them as calls because she did not answer them seems convoluted to me, considering that the appellants went to the effort of mentioning them in the BOC Form. [40] If in fact the calls were received, given that the number was not displayed and the female appellant did not answer them, I conclude that it has not been established that they were connected to the appellants' story or that they were calls demanding money or making threats. Not knowing how the unknown individual obtained her cellphone number [41] I agree with the appellants: it is erroneous to find that the female appellant lacks credibility because she is unable to state how the unknown individual who contacted her in XXXX 2017 obtained her cellphone number. The individual could have obtained it in various ways. For example, the female appellant stated that [translation] "someone could have gotten her number from her emails at the office." [42] That is one possibility. Finding that she lacked credibility because the female appellant was unable to provide more information is incorrect because she would have had to speculate. Incident on XXXX XXXX, 2017 [43] As for the incident on XXXX XXXX, 2017, during which a vehicle tried to hit the appellants' vehicle, the RPD stated that this incident is possible but that, on its own, [translation] "it does not constitute a reason for the appellants to have a prospective fear of returning to Haiti." The RPD added that [translation] "it would be expected that the incident would be mentioned in the course of a follow-up call." [44] The appellants argue that [translation] "members cannot base their decision on utter speculation or mere assumptions that are not supported by the evidence." [45] I agree with the appellants: members cannot base their decisions on utter speculation or assumptions. However, in this case, I believe that the RPD actually concluded that this incident, on its own, is insufficient to conclude that it is likely that the appellants' lives would be in danger if they were to return. In coming to that conclusion, it considered the following factors: * no follow-up to this isolated incident, for example, follow-up calls; * although they left their house, the appellants continued to live in the same neighbourhood, with the male appellant's father; * the female appellant continued with her professional activities; * they never reported the supposed threatening calls to the police. [46] It is difficult to differentiate between an inference, speculation and assumptions. In K.K. v. Canada (Minister of Citizenship and Immigration), 2014 FC 78, at paragraph 61, the Federal Court summarizes the applicable principles as follows: * An inference is a conclusion that follows logically and reasonably to a sufficient degree of probability from accepted facts by the application of an inductive reasoning process that utilizes the uniformity of prior human experience as its benchmark. * The facts that are said to provide the basis for the inference must be established by the evidence and cannot be substituted for by speculation. * Because there is no bright line, drawing a distinction in degrees of probability between permissible reasonable inferences and impermissible speculation is often a very difficult task. * Drawing inferences is not about possibilities, nor is it a process of creating a hypothetical narrative, or applying subjective imagination even where the circumstances permit an educated guess. * ... [A]ll that is required is that the inference be reasonable and logical. [47] Considering the principles established by the Court, I believe that the RPD drew a logical inference in the context of Haiti. I am of the opinion that if the incident on XXXX XXXX, 2017, were connected to an earlier extortion demand, it is logical to think that there would be follow-ups. However, in this case, the appellants left Haiti 15 or so days later and did not have any problems. I also find it surprising that the female appellant feared for her safety yet continued to work and, what is more, she travelled for work. [48] Finally, I find it difficult to believe the appellants, who explained that the female appellant did not file a complaint after the anonymous call on XXXX XXXX, 2017, because the offices are closed on the weekend. Yet, on XXXX XXXX, 2017, a Sunday, they went directly to the police station to report the incident they were part of. That plants a seed of doubt in my mind. [49] When considered together, these reasons lead me to conclude that the appellants have not established, on a balance of probabilities, that there is a link between the various incidents they are alleging. In this context, I do not believe that the RPD erred. Section 97 of the Immigration and Refugee Protection Act [50] As the RPD indicated during the hearing, the alleged facts give rise to an analysis under section 97 of the IRPA. For this type of claim to be allowed, the appellants had to establish that the personal risk to which they could be subjected is different from the generalized risk. However, I agree with the RPD that they did not discharge their burden of proof. [51] The appellants fear that they will be extorted or that one of their children will be kidnapped. In my opinion, they fear the insecurity that is common in Haiti. [52] During the RPD hearing, counsel argued that the refugee protection claimants were personally targeted. [53] At the hearing, the appellants stated that the insecurity is such that even police officers are not safe. At Tab 7.2 of the NDP, it states: Some sources report that kidnappings for ransom occur.... The UK informs travellers to Haiti of the threat of kidnappings in Port-au-Prince, particularly in Petionville.... Belgium advises its travellers that kidnappings are [translation] "not uncommon" and [translation] "are the primary security risk for individuals".... According to the US Bureau of Diplomatic Security, kidnapping victims are not targeted because of their nationality, race, gender or age, and the breakdown in kidnapping victims in the last few years is "spread fairly evenly" among men, women and children (US 28 May 2014, 5). The Bureau reports that "[a]ll persons who are perceived to have wealth or some family connections with assets, either in Haiti or abroad, are vulnerable" (ibid.). According to the UK's advice to travellers, however, both Haitians and foreigners can be victims of kidnapping, because "[k]idnappers target wealth".... However, the information provided to Canadian travellers indicates that "[t]he general Haitian population, regardless of social class, can be considered at risk of being kidnapped" (Canada 9 June 2014).... The US Bureau of Diplomatic Security noted that cases of home invasions for the dual purpose of kidnapping and robbery do occur, particularly in the more affluent areas of Port-au-Prince.... [54] In Prophète,13 Justice Temblay-Lamer states the following: While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence. [55] In this country, where violence is endemic, the fear of being kidnapped is a risk faced by the entire population and is not dependent on sex or social class; consequently, it is a "generalized risk." According to the information at Tab 14.1, crime does not affect only the rich: "the majority of victims of crime are poor, since wealthy citizens can afford private security services to offset their higher individual risk." [56] For these reasons, I also conclude that the appellants did not discharge the burden set out in section 97 of the IRPA. CONCLUSION [57] For these reasons, I confirm the RPD's determination to the effect that XXXX XXXX XXXX, XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not "Convention refugees" or "persons in need of protection" within the meaning of section 97 of the IRPA. [58] The appeal is dismissed. Maria De Andrade Me Maria De Andrade April 1, 2019 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Singh, 2016 FCA 96. 2 Appellants' memorandum, page 16. 3 Refugee Appeal Division Rules (SOR/2012-257). 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Rozas Del Solar, Paola et AL v. (Minister of Citizenship and Immigration), 2018 FC 1145. 6 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board, Ottawa, November 13, 1996. 7 Appellants' memorandum, page 14. 8 Appellants' memorandum, page 15. 9 Kettia Joseph et al. v. Canada (Minister of Citizenship and Immigration), 2018 FC 638. 10 Josile v. Minister of Citizenship and Immigration (No. IMM-3623-10), 2011 FC 39. 11 Josile v. Canada (Minister of Citizenship and Immigration), 2011 FC 39. 12 RPD record, pages 180 to 194. 13 Prophète, Ralph v. M.C.I. (F.C., No. IMM-3077-07), Tremblay-Lamer, March 12, 2008; 2008 FC 331, para. 23, confirmed by Prophète, Ralph v. M.C.I. (F.C.A., No. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 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 : MB7-25500/MB7-25501 MB7-25502/MB7-25503 3 RAD.25.02 (7 février 2014) Available in English