MB8-20714

RAD File No. / No de dossier de la SAR : MB8-20714 MB8-20715 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision August 14, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the persons who are the subject of the appeal Me Souad Hamida Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX and XXXX XXXX are Haitian citizens who left their country because Mr. XXXX was kidnapped and attacked by members of the Lavalas party, who had allegedly confused him with his brother, who was heavily involved in the rival PHTK party. He reportedly left Haiti to go to the Dominican Republic and then to Brazil in XXXX 2013. Ms. XXXX apparently left Haiti in XXXX 2015 to join her husband in Brazil in October of the same year. They allegedly stayed in Brazil until XXXX 2016 before going to the United States. They stayed there until they came to Canada in XXXX 2017. [2] The Refugee Protection Division (RPD) concluded that Mr. XXXX and Ms. XXXX did not have a prospective risk because: - they were never politically active, while the targeted brother with whom he is confused is himself outside of the country; - during the two years when she stayed in Haiti after her husband had left, Ms. XXXX did not have any problems; - there is an internal flight alternative (IFA) in Cap-Haïtien or Port-de-Paix, which is not unreasonable, considering their skills and the work that they can do; - the perception of wealth that they would face if they were to return would subject them to a risk of banditry that is not specific to them, but falls within a generalized context of crime; - the gender-based risk that Ms. XXXX is afraid of facing is not specific to her, particularly because she does not have a vulnerability profile, such as that of single mothers who do not have male protection; and - by avoiding the protection that was offered to them in Brazil, their actions undermine the credibility of their fear. [3] They are appealing against the RPD's decision of August 8, 2018, alleging that it erred by failing to consider: - their fear of being victims of acts of revenge as a result of the complaint filed by Mr. XXXX brother after the attack on Mr. XXXX; - Exhibit P-4 submitted, which shows the striking resemblance between Mr. XXXX and his brother and the confusion that it creates, particularly among those who are going after him. [4] They also submit that, by identifying a possible IFA, the RPD came to a contradictory conclusion, in which it argued that they do not have a risk of persecution, yet it suggested a place where the risk is even lower. [5] Lastly, the decision lacks justification and clarity due to the failure to consider all the evidence and the rejection of the explanations. DETERMINATION OF THE APPEAL [6] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to a differently constituted panel of the RPD. THE REFUGEE APPEAL DIVISION'S ROLE [7] The RAD reviews RPD decisions after carrying out its own analysis of the record by applying the correctness standard of review.1 The exception to this rule is that, where the RPD has a meaningful advantage, the RAD may show deference.2 [8] I will apply the correctness standard as I carry out an independent analysis of the record, which includes all the evidence and listening to the recording. ANALYSIS [9] The determinative issue is whether the RPD's decision is correct. [10] The alleged source of Mr. XXXX problems stems from: - the fact that he looks like his brother and the reputation of the latter because of his role in the PHTK party; and - the vindictiveness of Lavalas party members towards his brother because of his role in the PHTK and the complaint that he allegedly filed regarding the attacks against Mr. XXXX. [11] In light of the physical and testimonial evidence put forward by Mr. XXXX and Ms. XXXX, the RPD is required to assess, on a balance of probabilities, the prospective risk that they would be subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they were to return to Haiti. [12] The RPD was of the opinion that, at the hearing, many of the arguments put forward in support of the evidence were speculative. [13] It found the following to be speculative: - the appellants' fear of the future because Mr. XXXX brother had allegedly stayed in Haiti for several months after Mr. XXXX left, even though Lavalas members were actively looking for him; - the fact that Lavalas was actively looking for Mr. XXXX and Ms. XXXX; - the fact that neighbours in the cities suggested as IFAs could tell Lavalas members that they were there. [14] However, qualifying Mr. XXXX and Ms. XXXX fears as speculative is an improper application of the criteria that must guide the analysis of the refugee protection claim. The prospective nature of reviewing the alleged risk makes it inherently speculative. [15] Furthermore, even before the conclusion concerning the prospective risk, on a balance of probabilities, that they would face if they were to return to Haiti, the RPD erred by reviewing an IFA. [16] A reading of the decision gives no insight into why the RPD was of the opinion that Mr. XXXX and Ms. XXXX have or do not have, on a balance of probabilities, a prospective risk of being subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment. If in fact it found that the prospective risk does not exist, then it was not necessary to proceed with the analysis of an IFA. [17] As a result, these contradictions render the decision incorrect, and the process that it undertook to review the IFA does not allow me to determine the reasons that led it to conclude either way. At the same time, I cannot dwell on the reasons, whether it be to confirm or reject some or all of its conclusions. CONCLUSION [18] The appeal is allowed. Under paragraph 111(1)(c) of the IRPA, the RAD refers the matter to a differently constituted panel of the RPD. Richard Sheitoyan Me Richard Sheitoyan August 14, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-20714 MB8-20715 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français