MB4-03786

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. / No de dossier de la SAR : MB4-03786 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/heard at Montréal, Quebec Appel instruit à Date of decision April 15, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Eric Taillefer Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD), which rejected her claim for refugee protection by concluding that she did not meet her burden of establishing that she is a refugee or a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant has not presented any new evidence in support of her appeal under subsection 110(4) of the IRPA and is not requesting that a hearing be held before the RAD under subsection 110(6) of the IRPA. [3] She is asking the Refugee Appeal Division (RAD) [translation] "to allow this appeal, grant her Convention refugee status, or give any other directions it considers appropriate."1 [4] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. BACKGROUND [6] This is the second time that the RAD has had this matter before it. The first time, in a decision rendered on April 14, 2014, my RAD colleague referred the matter to the RPD for re-determination of the refugee protection claim, as he was of the opinion that the negative credibility findings were unreasonable. In the decision analyzed by my colleague, the RPD had erred in fact by mentioning that the appellant had been in Canada since May 2013 and by drawing a negative inference from the delay in claiming refugee protection. [7] On September 2, 2014, the RPD again rejected the appellant's claim for refugee protection. [8] The appellant arrived in Canada on September 18, 2013, with the intention of spending three weeks' vacation here. She claimed refugee protection on September 26, 2013. [9] In the Basis of Claim Form (BOC Form), the appellant states that on XXXX XXXX, 2013, in Port-au-Prince, while she was on the street with her husband, two individuals tried to abduct them. They managed to escape their assailants because an oncoming motorcycle driver forced the assailants to flee. The appellant states that she was injured in the incident but required medical attention only five days later because she was afraid to leave her home. [10] On XXXX XXXX, 2013, three individuals tried to assault her husband while he was on his way home. He managed to barricade himself in his home before the assailants got to him. While he was inside the house, her husband allegedly heard the assailants state [translation] "we will get them just the same." In leaving the scene, they fired a shot. The next day, her husband left Port-au-Prince to seek refuge in Léogane at the home of friends. He allegedly attempted to lodge a complaint in Léogane, albeit in vain, because the assault was committed in another jurisdiction. The appellant believes that this assault was related to the first because her husband told her that one of the assailants resembled one of those who had tried to abduct them in XXXX 2013. [11] On November 12, 2013, the appellant made changes to her BOC Form. She added that on XXXX XXXX, 203, her husband was assaulted in Port-au-Prince by two individuals who stole his laptop computer and his fiscal identification card. According to the proposed amendments, [translation] "he had gone to Port-au-Prince to lodge a complaint and retake possession of our house."2 The individuals allegedly informed her husband that if his wife had been there, she would have been killed because they were not pleased with the decisions she made in her work at XXXX XXXX XXXX XXXX According to them, his wife was too demanding with respect to financial loans that were not repaid. [12] According to the appellant's statements, the Port-au-Prince police refused to take the complaint for the previous assaults, on the pretext that her husband was unable to identify the assailants. Nevertheless, they took the complaint concerning the incident on XXXX XXXX, 2013, because a robbery had been committed. [13] The appellant states in the BOC Form that following the assault in XXXX 2013, she did not ask for the authorities' protection, believing that it was a random incident, that they were unable to identify the assailants and that they feared being the victims of police officers who colluded with gangs. Furthermore, she did not seek refuge elsewhere because she did not believe that the assault on XXXX XXXX, 2013, was a planned attack against her. The events that followed convinced her of the contrary. [14] At the hearing, she added a new fact. Her husband had allegedly received telephone threats a few days earlier. Impugned decision [15] In a decision rendered on September 2, 2014, the RPD rejected the claim for refugee protection by indicating that [translation] "the claimant did not demonstrate that she and her husband had been assaulted as the result of her professional activities or that there was a reasonable fear of persecution or of being subjected to a risk within the meaning of subsection 97(1) of the IRPA, on a balance of probabilities."3 [16] Regarding her credibility, the RPD noted the following points: - The five-day delay before seeking treatment following the assault on XXXX XXXX XXXX 2013, undermined her credibility. - In relying on its specialized knowledge, the RPD was of the opinion that the appellant's explanations were insufficient to justify the absence of a complaint for the physical assaults in XXXX 2013 and XXXX 2013. - If she was being sought in relation to her professional activities, [translation] "it is not very plausible that the assailants did not look for her at her workplace or at her family's home." [17] Regarding the prospective risk as a Haitian woman, the RPD, after taking into account Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution,4 concluded the following: - The appellant is not a woman who is alone. She has a husband, a father, a mother, brothers and sisters who live in Port-au-Prince. Her family has no particular problem in relation to the refugee protection claimant. - The refugee protection claimant is not homeless; she still has the house that she lived in before leaving the country. - According to the analysis of the evidence, the RPD is of the opinion [translation] "that, based on the claimant's account and her testimony, this ground does not constitute the basis of Ms. XXXX's claim" (para. 24 of the decision). - Finally, the RPD concluded that [translation] "the claimant's personal situation would not put her at risk of persecution as a woman returning to Haiti, in light of the case law and the evidence in the record" (para. 25 of the decision). GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [18] The appellant submits that the RPD's findings as to her credibility were made on the basis of implausibility and opinion. The appellant points out that the RPD did not raise any contradiction in her testimony, or between it and her various written statements. [19] Relying on the decision in Divsalar v. Canada (Minister of Citizenship and Immigration), 2002 FCT, at paragraph 24, the appellant submits that "[p]lausibility findings should only be made in the clearest of cases-where the facts as presented are either so far outside the realm of what could reasonably be expected that the trier of fact can reasonably find that it could not possibly have happened, or where the documentary evidence before the tribunal demonstrates that the events could not have happened in the manner asserted by the claimant."5 [20] The appellant also submits that the RPD did not correctly assess her profile regarding her risk as a woman. THE RAD'S ROLE AND FUNCTIONS [21] Citing Justice Roy in Spasoja,6 the appellant submits that [translation] "the only possible remedy is to grant her Convention refugee status." Interpreting the statements by Justice Roy, she submits that [translation] "the rule intends for the RAD to render the decision that, in its opinion, should have been made." The appellant adds, [translation] "It is only when it is impossible for the RAD to analyze the evidence and an error is committed by the RPD that a decision can be referred. In this case, no new analysis of the documentary evidence is necessary."7 [22] Since the appeal before the RAD is a statutory remedy, its mandate and powers are defined in its home statute, the IRPA. [23] The statutory provisions indicate precisely the allowable grounds for appeal,8 as well as the RAD's "remedial powers." In this regard, Parliament allows the RAD to confirm the determination of the RPD, set aside the determination and substitute the determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.9 [24] The RAD generally proceeds without a hearing, on the basis of the appeal record..10 A hearing will be held only in the exceptional circumstances set out in subsection 110(6) of the IRPA. The RAD will not hold a hearing in this case, as no new evidence was submitted in support of the appeal. [25] Called upon to determine the appropriate type of review that the RAD must conduct of the RPD decision, the Federal Court recognizes the RAD's "expertise" on refugee matters. The Court is of the opinion that broad powers are conferred by the IRPA, "allowing the RAD to dispose of the merits of appeals,"11 and states, "The idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."12 Despite the justices' shared view point, the Federal Court is faced with two major lines of case law. [26] Justice Shore, drawing on the Court of Appeal in Parizeau v. Barreau du Québec,13 is of the opinion that: [27] ...[T]he RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts.... [28] ... [As] a specialized (if not overspecialized) tribunal...the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above).14 [27] Justice Shore adds that "palpable or overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. [28] In Spasoja,15 Justice Roy, in examining Parliament's intention when the RAD was created, notes that appeals before the RAD are meant to be generous. However, "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety." He is of the opinion that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)," stating that an error must be "palpable and overriding" to "succeed on appeal." Justice Leblanc also shares the opinion that the error must be "palpable and overriding."16 [29] In Huruglica,17 Justice Phelan proposes a significantly different response: "the RAD is required to conduct a hybrid appeal." [30] It must "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision."18 [31] In addressing the deference that the RAD owes to the findings of the RPD, Justice Phelan states that it may be "[justified to show] deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [32] Given the decisions rendered by the Court thus far, I find it apparent that the RAD, as a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [33] In reviewing the evidence, the RAD may show a measure of deference when the credibility of a refugee protection claimant is at the heart of the decision, or when the RPD has an advantageous position over the RAD. However, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, there are grounds for the RAD to intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [34] In terms of errors of law, Justice Shore states that "the RAD must be able to correct any error of law".19 MERITS OF THE APPEAL [35] The RAD must proceed with an assessment of all the evidence in order to form its own opinion and render the determination that, in its opinion, should have been made. Therefore, I listened to the recordings of both hearings and reviewed the documentary evidence in the RPD record and the appellant's memorandum. [36] The principal issues raised by the appellant are the following: Did the RPD err in the analysis of her credibility and in the assessment of the prospective risk by reason of her membership in the particular social group of "women?" Credibility [37] Credibility is a complex question of fact for which the RPD has the advantage of seeing and hearing refugee protection claimants or witnesses. The appellant submits that the RPD did not raise any contradiction in her testimony, or between it and her written statements. According to her, the decision was based on the member's opinion and [translation] "has no legal basis." The appellant urges the RAD to grant her status as a Convention refugee or a person in need of protection. Section 96 of the IRPA [38] The status of Convention refugee may be granted only to the refugee protection claimant who has a well-founded fear of persecution on one of the five grounds set out in section 96 of the IRPA, namely, race, nationality, religion, membership in a particular social group or political opinion. In this case, the appellant alleges a well-founded fear of persecution by reason of her membership in the particular social group of "women." [39] The framework of analysis suggested by Guideline 4 states that: The gender-defined group cannot be defined solely by the fact that its members share common persecution.20 [40] In Dezameau,21 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". [41] Furthermore, in Josile,22 Justice Martineau sets out criteria to be taken into consideration in the analysis of a Haitian woman's refugee protection claim, invoking a fear of persecution by reason of her gender. The male presence in the family, the availability of state protection, the place where the claimant would go to live, as well as the circumstances that are specific to her, are criteria to take into consideration. [42] The appellant's situation must be assessed with complete objectivity and compared to the documentary evidence and the facts that are specific to her. In my opinion, it is essential to move away from any attempt to put all Haitian women in the same situation, unless the documentary evidence mentions that this is the case. However, according to my analysis of the objective documentary evidence, this is not the case. [43] The documentary evidence indicates that the individual characteristics of each woman and the environment in which they live can have an influence on the risk to which they are exposed. As each case stands on its own merits, it appears to me that, in this case, the RPD took into account the evidence in the record when it concluded that the refugee protection claimant did not establish a serious possibility of persecution by reason of her gender should she return to Haiti. [44] Its analysis takes into account her personal situation, namely the makeup of the appellant's family, and the fact that she did not establish that she would find herself in a vulnerable situation such that there would be a serious possibility of persecution by reason of her gender. The analysis also takes into account the tests developed by the case law in this type of case and the documentary evidence to the effect that too often violence against women in Haiti is committed in a family context. [45] The RAD adds that the evidence in the record demonstrates that in the wake of the alleged assault on XXXX XXXX, 2013, the appellant carried on with her tasks until she travelled to Canada. The appellant used her annual leave scheduled in XXXX 2013 to visit Canada for three weeks. She did not claim refugee protection by reason of her gender upon her arrival, even though she was violently assaulted in XXXX 2013, according to her statements in the BOC Form. Moreover, the IMM-5669 document indicates that the appellant stayed in Canada from XXXX 2011 to XXXX 2012 and returned to Haiti. Furthermore, she stated under oath at the first hearing that before September 2013, she had not thought of leaving her country.23 Her sisters and her mother live in Port-au-Prince, and the appellant did not indicate that they had to deal with any particular problems as women. [46] These cumulative factors in the appellant's particular situation lead to the conclusion that she did not meet her burden of establishing that there would be a serious possibility of persecution by reason of her gender should she return to Haiti. [47] Consequently, after analyzing all the evidence, I share the findings of the RPD on this point. I am of the opinion that the RPD's decision is based on the evidence in the record. It is neither arbitrary nor capricious. The appellant did not establish that the RPD committed a "palpable and overriding error" or even that its analysis regarding her risk as a "woman" is vitiated. Section 97 of the IRPA [48] The Immigration and Refugee Board of Canada may allow a claim for refugee protection by concluding that a claimant is "a person in need of protection" if it is established, on a balance of probabilities, that she would be personally subjected to one of the risks set out in section 97 of the IRPA. [49] The appellant alleges in the BOC Form that [translation] "on XXXX XXXX, two individuals tried to abduct me and my husband."24 She states therein that her country is dangerous, that in Haiti people are [translation] "attacked and killed for no reason. Every day citizens, children, minors are shot down at an alarming rate by murderers."25 She also states that she did not lodge a complaint about the incident on XXXX XXXX, 2013, believing that it was an incident [translation] "committed at random...that we were unable to give solid information on the assailants and that...often people complain that they are the victims of the indiscretion of certain police officers who collude with gangs."26 [50] To allow a claim under section 97 of the IRPA, a refugee protection claimant must establish that the risk to which she would be subjected should she return is personal and different from the generalized risk that the other citizens of the country must face. The appellant did not establish that she was personally targeted or that the various assaults were related [51] In this case, the appellant stated that following the assault on XXXX XXXX, 2013, when three individuals attempted to assault her husband while he was on his way home,27 she realized that she had been personally targeted since XXXX 2013 because of her work. She also claimed that these assaults are related. Her allegations are based on the fact that her husband informed her that, at the XXXX XXXX, 2013, assault, he seemed to recognize one of the assailants from XXXX 2013. Then, at the time of the assault on XXXX XXXX, 2013, the assailants allegedly informed her husband that his wife was too demanding in recovering loans. [52] An assessment of the evidence leads to the conclusion that the appellant did not meet her burden of establishing that this assault targeted her personally or for the grounds alleged. [53] When asked at the time of the hearing on August 21, 2014, whether she had ever seen the assailants prior to the first assault in XXXX 2013, she answered no. Then, she testified that at the time of the XXXX 2013 incident, the assailants did not make any remark related to her work.28 Finally, when asked to explain how the assailants could have known that she and her husband would take XXXX XXXX XXXX Street at that exact time in XXXX 2013, the refugee protection claimant was unable to answer. [54] Furthermore, at her first hearing before the RPD, the appellant presented a statement from her husband dated November 6, 2013,29 describing the three assaults of which he was the victim. Yet, in this statement, he makes no reference at all to the fact that at the time of the incident in XXXX 2013, he believed that he recognized one of the assailants from XXXX 2013. [55] Taking into account the various facts revealed in the testimony, I am of the opinion that the RPD was also justified in finding that the time that elapsed between the two assaults, if they did take place, does not favour a connection between them. [56] The RPD also found that the fact that the assailants never looked for her at her workplace influenced the credibility of her allegations that the assaults were related to her work. The appellant argues that the RPD erred by taking into consideration the state of mind of the assailants. [57] Respectfully, I share the idea that it is logical to think that if the appellant were targeted because of her professional activities, it is likely that unsatisfied clients would have looked for her at her place of work, which according to the addresses in the record is next to her mother's home, or that they would have informed her at some point of their dissatisfaction. Yet, the evidence does not suggest this. Furthermore, I add that the appellant testified at the second hearing that it was a law firm that took care of recovering loans. [58] Consequently, these factors taken cumulatively do not establish that the assaults, if they did occur, were connected or that they were related to her work. Complaint to police [59] The RPD drew a negative inference regarding the appellant's credibility because she stated that the police officers at the Port-au-Prince station did not want to take her husband's complaint regarding the assaults of which he was the victim because he was unable to identify the assailants, given that, according to its specialized knowledge, in Haiti, police officers take complaints even when the complainant is unable to identify the attacker. [60] In her memorandum, the appellant alleges the ineffectiveness of the police, the corruption of certain police officers in order to claim that the member cannot have such specialized knowledge. The appellant submits that the RPD erred in [translation] "applying a standard in the taking of complaints by the police in Haiti, when such a standard does not exist."30 [61] Respectfully, I am of the opinion that the RPD did not err in entertaining a serious doubt as to the appellant's testimony regarding the complaints, especially because, in this case, the appellant's husband lodged a complaint against unknown individuals for a robbery. In my opinion, if any probative value must be granted to this complaint, this confirms the member's alleged knowledge that in Haiti, it is possible to lodge a complaint against unknown individuals. The RAD also points out that the member who heard the refugee protection claim for the first time also referred to her specialized knowledge to the effect that in Haiti, it was possible to lodge a complaint against unknown individuals.31 This tends to indicate that at the time of the second hearing, the member did not err in using her specialized knowledge. [62] The RAD notes that the appellant stated that in XXXX 2013, following an attempted abduction, she and her husband did not lodge a complaint, among other reasons, because they could not identify their assailants, because filing a complaint makes the complainants more vulnerable and because often complaints were not acted on. Yet, it is odd that this argument did not prevent her husband from returning to Port-au-Prince on XXXX XXXX XXXX 2013, to lodge a complaint for incidents that allegedly took place on XXXX XXXX, 2013, and XXXX XXXX, 2013, and that a robbery complaint against unknown assailants was lodged on XXXX XXXX, 2013, a few weeks before the date of the hearing. The RAD points out that it also finds it odd, in the context where the police are not always seemingly disposed to follow up on complaints, that her husband attempted to file a complaint in XXXX 2013 for assaults that took place four months earlier and one month earlier. This, taken cumulatively, seriously undermines the credibility of the appellant's allegations. Medical certificate [63] The appellant presented a photocopy of a medical certificate in order to corroborate her testimony regarding the incident in XXXX 2013. She submits that the RPD erred in finding that the delay in seeking treatment undermined her credibility. [64] Although I am sympathetic to the argument that some people may wait before seeking treatment for an injury because of the trauma caused by an assault, in this case, the medical certificate in no way establishes why the appellant required medical care. [65] For these reasons, I am of the opinion that the appellant did not establish that should she return, she would be personally subjected to one of the risks set out in section 97 of the IRPA. CONCLUSION [66] After taking into consideration all the evidence I have available, forming my own opinion on the merits of the appellant's claim for refugee protection, weighing the appellant's arguments, and analyzing the impugned decision, I am of the opinion that the RPD rendered the appropriate decision by determining that the refugee protection claimant is not a Convention refugee or a person in need of protection under section 97 of the IRPA. [67] For these reasons, I dismiss the appeal and confirm the determination of the RPD, namely, that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" under section 97 of the IRPA. [68] The appeal is dismissed. Maria De Andrade Me Maria De Andrade April 15, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, page 110. 2 Appellant's memorandum, page 13. 3 Refugee Protection Division (RPD) decision, paragraph 20. 4 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board of Canada, Ottawa, November 13,1996. 5 Appellant's memorandum, page 104. 6 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 7 Idem, para. 48. 8 Subsection 110(1) of the IRPA: "Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." 9 Subsection 111(1) of the IRPA. 10 RPD record, parties' memorandum, or any [translation] "evidence admitted under subsections 110(3) and 110(4) of the IRPA." 11 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Huruglica v. Canada (Citizenship and Immigration), 2014 FC 799. 12 Idem. 13 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 14 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 15 Supra, footnote 6. 16 Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 17 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 18 Idem. 19 Supra, footnote 14. 20 Supra, footnote 4. 21 Dezameau, Elmancia v. M.C.I. (F.C., No. IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559. 22 Josile v. Canada (Minister of Citizenship and Immigration), 2011 FC 39. 23 CD of the hearing on December 2, 2013, at 16:26. 24 RPD record, Basis of Claim Form, question 2(a), page 195. 25 Idem, question 2(b), page 198. 26 Idem, question 2(c). 27 Idem, question 2(d), page 200. 28 CD of the hearing on August 21, 2014, at 55:44. 29 RPD record, pages 58 and 59, Exhibit P-2. 30 Appellant's memorandum, page 106. 31 CD of hearing on December 2, 2013, at 1:05:32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-01433 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / No de dossier de la SAR : MB4-03786 16 RAD.25.02 (7 février 2014) Available in English