MB9-17045

RAD File No. / No de dossier de la SAR : MB9-17045 MB9-17046 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision August 6, 2020 Date de la décision Panel Jillan Sadek Tribunal Counsel for the persons who are the subject of the appeal Claude Whalen Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX, is a citizen of Haiti. Her daughter, the minor appellant (XXXX XXXX XXXX), is a citizen of the United States. The appellant's husband lives in Haiti. The appellant also has two sons (twins), who were born in Canada in XXXX 2018. [2] The appellant alleges that she cannot return to Haiti because, in XXXX 2017, she helped a rape victim file a complaint with the police against her assailant, a man named XXXX. The appellant alleges that she became involved in this case because of her work with the XXXX XXXX XXXX XXXX (XXXX) [XXXX XXXX XXXX]. According to the appellant, XXXX is a known criminal and, after his arrest, members of his gang and his family blamed the appellant and began to threaten her. In XXXX 2017, the appellant decided to leave the country. [3] The appellant already had a visa for the United States, issued in 2014, and her daughter had her US passport, since she was born in that country in 2015. The appellant and her daughter entered the United States on XXXX XXXX, 2017, and then entered Canada on XXXX XXXX, 2017, to claim refugee protection. [4] The Refugee Protection Division (RPD) rejected her refugee protection claim due to a lack of credibility. The RPD also noted a lack of prospective risk. [5] As for the minor appellant, the RPD concluded that no risk described under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA) was raised and that her circumstances did not allow the RPD to conclude that she would be subjected to such risks in returning to the United States. [6] The appellant submits that the RPD erred in its assessment of her credibility. The appellant does not challenge the rejection of the claim of her daughter, the minor appellant. [7] My role is to examine all of the evidence and determine whether the RPD's decision is correct.1 DETERMINATION [8] I dismiss the appeal. The RPD was right to determine that the appellants are neither Convention refugees nor persons in need of protection. NEW EVIDENCE [9] On June 15, 2020, the Refugee Appeal Division (RAD) informed the appellant that she had 30 days from the date of receipt of the notice to provide any documents or written submissions in support of the appeal without a request being presented, but that the other requirements under rule 29 and subsection 110(4) of the IRPA still applied. [10] On July 17, 2020, the appellant submitted three recent articles related to the COVID-19 rate in Haiti. The appellant states that Haiti reported a small number of COVID-19 cases, but that the number of tests performed is very low. The appellant submits that the health system is not prepared to respond to an increase in cases and that it is highly likely that she would be in contact with infected individuals. [11] Under subsection 110(4) of the IRPA, the only new evidence admissible on appeal is that which arose after the rejection of the refugee protection claim or that which was not reasonably available or which the appellants could not reasonably have been expected in the circumstances to have presented at the time of the rejection.2 Moreover, new evidence must meet the criteria set out in Singh and Raza: newness, credibility and relevance.3 The date on which the claim in question was rejected is November 4, 2019. [12] Rule 29 states that an appellant must explain how the new evidence meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the person. The RAD must then consider any relevant factors, including the document's relevance and probative value, any new evidence the document brings to the appeal and whether the appellant, with reasonable effort, could have provided the document or written submissions with her appeal record. In this case, the appellant's record was received on August 26, 2019. [13] Since the articles post-date the rejection of the claim and the date on which the appellant submitted her appeal record and since the articles are new, relevant and credible, the articles are admitted. [14] The appellant is not requesting that I hold an oral hearing. ANALYSIS [15] After having listened carefully to the recording of the hearing and analyzed the entire record, considering Chairperson's Guideline 4 entitled Women Refugee Claimants Fearing Gender-Related Persecution, I agree with the RPD in general, as I will explain later, that the appellant's allegations are not credible. [16] The RPD identified a large number of contradictions in the appellant's evidence, which led it to find that her persecution story was not credible. I agree with the analysis of the most glaring problems identified by the RPD. As for the rest of its findings, I find them too microscopic. Below is a table showing the different findings made by the RPD and my opinion on each finding. Refugee Protection Division's findings My opinion A- At paragraph 17 - The RPD noted that the police complaint had been filed against a person named XXXX; however, the appellant omitted to name this person in her testimony and in her account, despite the RPD having asked her if she knew her persecutors. I agree with the RPD that this undermines the appellant's credibility. B- At paragraph 21 - The RPD noted that there was a contradiction in some of the appellant's documents regarding the time of day at which she had found a letter from the persecutors, when she woke up or when she returned from work. In my opinion, this contradiction is not significant, between the documents, as some corroborated her testimony that she saw the letter when she returned from work. C- At paragraphs 29 to 33 - The RPD noted a contradiction as to how the appellant had sought help from a justice of the peace in XXXX 2017-through her lawyer or all alone-and whether she had met with the justice of the peace on XXXX XXXXor XXXX. In my opinion, these small contradictions are not significant; mistaking the date by one day is not sufficient to undermine the appellant's credibility. D- At paragraphs 36 to 38 - The RPD noted that according to the excerpt from the minutes of the Registry, the signs were on the walls, but the appellant omitted to mention this when she testified. I do not think this contradiction was worth mentioning. E- At paragraphs 42 to 43 - The RPD noted that the appellant had testified that she was informed of XXXX rape by her manager at the XXXX when she was at the organization's offices in Port-au-Prince and that her manager asked her to go to Anse-à-Pitre; however, the letter from her manager states that the appellant had learned of the rape directly from XXXX family when she was already travelling in the area, to Anse-à-Pitre. In my opinion, this contradiction is significant and highly indicative of a serious credibility issue. F- At paragraphs 46 to 50 - The RPD noted contradictions and confusing testimony given by the appellant as to what exactly happened from XXXX XXXXto XXXX after she had gone to the hospital in XXXX XXXX where XXXX and her family were and later when she accompanied them to the XXXX XXXX XXXX (XXXX) hospital in Port-au-Prince. These contradictions as to where and when exactly the examinations occurred are not significant, and the RPD's questioning was too scrupulous. G- At paragraph 51 - The RPD noted a contradiction between the appellant's testimony and her own account regarding the treatment that XXXX needed. In her account, the appellant states that XXXX needed several surgeries, but during her testimony, the appellant simply indicated that the doctors took samples for analysis. A medical certificate on the record also confirms that no surgery or specialized treatment was required. This contradiction is significant and greatly undermines the appellant's credibility. H- At paragraphs 53 to 54 - The RPD found it implausible that XXXX was sent to a laboratory in XXXX XXXX by the XXXX hospital because the latter is recognized for its expertise in sexual assaults. In my opinion, this is not a significant implausibility. It is perhaps unlikely, but not impossible. I- At paragraph 55 - The RPD concluded that the appellant's account lacked considerable details regarding the support she had provided to XXXX family. In my opinion, the fact that some details were missing from the appellant's account does not mean that there is a lack of credibility. J- At paragraph 58 - The RPD noted that the appellant's account and the excerpt from the Registry minutes state that a person on a motorcycle pointed a weapon at the appellant on XXXX XXXX, 2017. However, the appellant explained in her testimony that there were two people on the motorcycle, one driving and the one who pointed the weapon. I do not find this contradiction significant. [17] As the table above shows, I agree with RPD findings "A," "E" and "G." In my opinion, these three contradictions are sufficient to find that the appellant's persecution story involving someone named XXXX and his associates is not trustworthy. [18] From time to time, the RPD was too scrupulous and microscopic in its questioning and analysis. However, I do not consider these errors determinative of the appeal since the RPD was at all times respectful towards the appellant and patient and took great care to clearly understand the appellant's testimony. Its finding that the appellant's allegations were not credible is fair. [19] As for the appellant's arguments in her memorandum regarding the errors committed by the RPD in its analysis of her credibility, given my conclusions, I will only discuss those that contest the RPD's conclusions identified as "A," "E" and "G." Police complaint mentioning a person named XXXX [20] The appellant submitted to the RPD as evidence a copy of her police complaint regarding the incident on XXXX XXXX, 2017, the date on which she found a threatening letter on the steps in front of her home. The RPD noted that the complaint states the following: [translation] "Case against: XXXX, thus known, Nature: death threat."4 However, the appellant omitted to name this person in her testimony and in her account despite the RPD having asked whether she knew the names of her persecutors. [21] The appellant submits that the fact that she omitted to mention XXXX is not significant because she did not contradict her testimony or her account, since she did refer to the threats she had received from XXXX family, and XXXX is XXXX cousin.5 [22] I disagree with the appellant. It is true that, at the beginning of the hearing, the appellant stated that she was afraid of XXXX family,6 but she never specified that she knew that XXXX cousin, a man named XXXX, was behind her persecution while XXXX was in prison. [23] The appellant stated that the first threats she received were anonymous calls that began in XXXX 2017.7 The RPD asked the appellant who was responsible for these calls, to which the appellant replied that the calls were anonymous, but that these individuals had to be related to XXXX.8 The appellant stated that she no longer received threatening calls after changing telephone numbers. The appellant indicated that the next time she was threatened was on XXXX XXXX XXXX 2017, when she was waiting for her van after work; two people on a motorcycle pointed a weapon at her.9 She told the RPD that she could not identify the people on the motorcycle, so she did not file a complaint with the police.10 The next and final threat described by the appellant was when she found threatening leaflets on the stairs in the yard of her home on XXXX XXXX XXXX 2017.11 She kept one of the leaflets, which does not mention the author, and submitted a copy to the RPD as evidence. The translation of the letter from Creole states as follows: [translation] "I know you were involved in XXXX arrest. Remember you're not alone, you have a young daughter and also your family. We want to do everything to end you. You made him go to prison for rape, of which he's innocent. If you don't drop it, it could get worse for you. I'm warning you!"12 The RPD asked the appellant if she knew who was responsible for this threat. The appellant replied that she did not know, but that it was someone who was with XXXX.13 [24] The appellant testified that, following this event on XXXX XXXX, she sought the assistance of a lawyer to file a complaint with the police. She obtained a letter from the lawyer, a copy of which she submitted into evidence. She then gave the letter from the lawyer to a justice of the peace to make a report before filing a complaint with the police. Neither the letter from the lawyer nor the report from the justice of the peace mentions anyone named XXXX.14 [25] It was not until later that the RPD brought to her attention the fact that the name XXXX is mentioned on the police complaint, which the appellant explained is the name of XXXX cousin. The appellant specified: [translation] "XXXX is a cousin of XXXX. When XXXX was in prison and I was training in the area, he threatened me while I was doing this training. When I complained, they asked me to give the name of someone who had threatened me, so I gave the name XXXX."15 I do not accept this explanation. The appellant clearly told the RPD that she did not know the identity of the people who had threatened her. This is a blatant contradiction and is central to her persecution story. The RPD did not err when it noted this significant contradiction. [26] Moreover, I note that the appellant testified that she had never seen XXXX.16 The appellant also never explained how her actions, the fact that she accompanied the victim and her family to the hospital in Port-au-Prince, contributed to XXXX arrest or how XXXX family and his associates were able to identify her as someone responsible for his arrest. [27] Like the RPD, I am satisfied that the appellant worked for the organization XXXX as an accountant and that some elements of her story are based on real events. For example, I have no reason to doubt that the medical report concerning the victim, XXXX, is a genuine document. Nevertheless, everything about her own story of persecution by XXXX associates is not credible, in light of significant contradictions. How the appellant learned of the rape [28] The RPD noted that the appellant testified that she had been informed of XXXX rape by her manager at the XXXX when she was at the organization's offices in Port-au-Prince and that her manager asked her to go to Anse-à-Pitre to take care of it. However, the letter from the appellant's manager submitted into evidence states that the appellant learned of the rape directly from XXXX family when she was already travelling in the area to Anse-à-Pitre. [29] In her memorandum, the appellant states that there was no contradiction. It reads: [translation] "The panel concluded that the appellant had difficulty recounting the help provided to XXXX family and that, contrary to her testimony, it was not her organization that had notified her. The panel based its conclusion on the letter from the organization (C-16). The appellant submits that the letter does not state that she informed the organization of XXXX case. The author writes that she learned of the case while travelling. This does not lend itself to a conclusion that she was not sent there by the organization and that the latter was not aware of part of the case. The panel also makes the document say what it does not say. She reported to the organization what she noted once at the site. This does not support a conclusion that the organization did not know that XXXX had been assaulted. It is reasonable to conclude, however, that the organization was unaware of the details of the case."17 [30] I disagree with the appellant. The letter from her manager states as follows: [Translation] As an accountant, XXXX XXXX performed primarily administrative and financial duties at the XXXX-Haiti national office in Port-au-Prince. However, since she had lived in the Dominican Republic for a number of years and was quite familiar with the reality of Haitian migrants in that country, the organization's management often asked her to provide support to colleagues in the field as part of guidance for repatriated individuals, especially women victims of gender-based violence. It was during one of these trips in one of the border areas that she found out about a young girl who had been abused by a young man close to a certain community leader. Based on what she told us, she had provided the victim with the necessary assistance to report the case.18 [31] This letter is clear; the appellant allegedly learned of XXXX rape when she was travelling in a border area. However, the appellant explained in her oral testimony before the RPD that she had learned of the rape on XXXX XXXX, 2017, at the organization's offices in Port-au-Prince from her manager, who wanted her to go to Anse-à-Pitre with a colleague to help XXXX and her family.19 It is impossible to reconcile these two versions of the story. This contradiction of having been sent by her organization to help a rape victim is central to her story and is therefore a contradiction that greatly undermines the credibility of her allegations. The RPD was right to note this contradiction. Care required by XXXX [32] The RPD noted a contradiction between the appellant's testimony and her account regarding the medical treatment that XXXX needed. In her account, the appellant states that she needed several surgeries, but during her testimony, the appellant simply indicated that the doctors took samples for analysis. A medical certificate on the record also confirms that no surgery or specialized treatment was required. [33] The appellant submits that: [translation] "it is unreasonable for the panel to require her to perfectly remember all the small details of the story, including all the tests that the victim had gone through."20 [34] I disagree with the appellant. In her account, she describes that XXXX had been [translation] "raped, beaten and left for dead" and that she "was taken from emergency to the health centre in Fond Varrettes to receive first-aid and then to Port-au-Prince to receive more specialized care. She had to have several surgeries."21 This suggests that the appellant had severe bodily injuries. [35] However, the RPD asked the appellant what sort of care XXXX had received at the hospital, and the appellant replied that she does not know the terms for the various types of care.22 The RPD informed the appellant that the medical certificate on the record states that they performed a gynecological exam and took samples. The RPD then asked if the doctors did anything else. The appellant responded: [translation] "no, I think that's it."23 Obviously, undergoing a gynecological exam and having samples taken is far from having several surgeries. [36] Again, this part of the appellant's allegations is at the heart of her persecution story. If someone had actually helped a rape victim when she was in hospital in 2017, it would be reasonable to expect that this person would know, in simple terms, the nature and extent of the victim's injuries. I agree with the RPD that this contradiction undermines the credibility of the allegations. Prospective risk [37] The appellant submits that the RPD's conclusion regarding the lack of prospective risk is unreasonable. Her memorandum reads as follows: [translation] "XXXX and his men showed interest in her after she left the country. Her husband was threatened and had to leave the region. Under such circumstances, the panel speculated by concluding that the persecutors were no longer interested in her. If they were no longer interested in the appellant, they would not have looked for her after her departure. Moreover, just because they did not find her husband does not mean that the risk had disappeared."24 [38] At paragraphs 63 to 66 of its decision, the RPD conducted a brief analysis of the appellant's prospective risk, apparently taking into account her allegations to the letter. This additional analysis was unnecessary. The RPD had already determined that the appellant's allegations of persecution were not credible, so it made no sense to then take the same allegations into account in examining prospective risk. [39] Since I agree with the RPD that the allegations regarding the appellant's persecutor, XXXX, are not credible, I am satisfied that no prospective risk exists for the appellant as concerns this agent of persecution. Risk as a woman [40] The appellant submits that the RPD erred when it concluded that she would not be at risk in Haiti because of her gender. The appellant submits that the RPD: [translation] "failed to consider the abundant documentary evidence on the treatment of women in Haiti, which shows that the appellant risks persecution upon her return to Haiti."25 The appellant states that the objective evidence shows that violence towards women is widespread, chronic and systemic, that violence is increasing and that the police is ineffective. The appellant also submits [translation] "that the presence of a husband cannot reasonably allow a conclusion that the risk of violence does not exist."26 [41] As a Haitian woman, the factors normally associated with a risk of becoming a victim of violence in Haiti are the patriarchal nature of the society, which reaffirms the subordinate status of women, socio-economic factors (poverty, unemployment, living in an impoverished area, living in a camp for displaced people) and the absence of protection from a male family member.27 [42] These factors are not found in the circumstances. The appellant had specialized accounting training in the Dominican Republic after completing secondary school and worked as an accountant for four years in Haiti.28 In addition, the appellant travelled to the Dominican Republic and to the United States a number of times (in XXXX 2015, XXXX 2016 and XXXX 2017, and finally in XXXX 2017).29 [43] In closing, the appellant is educated, has professional experience, has a husband in Haiti and has the skills that make her capable of finding a job. Consequently, I agree with the RPD that the appellant would not face a serious possibility of persecution if she were to return to Haiti because she belongs to the particular social group of Haitian women, despite systemic problems with women's rights. Risk related to COVID-19 [44] The appellant states that Haiti reported a small number of COVID-19 cases, but that the number of tests performed is very low. The appellant submits that the health system is not prepared to respond to an increase in cases and that it is highly likely that she would be in contact with infected individuals. [45] The articles that the appellant submitted note that Haiti's medical system does not have the capacity to accommodate a massive influx of patients and that the coronavirus could cause more than 20,000 deaths because barrier measures are difficult to apply for the majority of this mostly poor population. [46] First, I note that the appellant has the burden of explaining how COVID-19 is a relevant factor in her case. However, the appellant did not explain how these articles show that COVID-19 would have a persecutory impact on her because of a link to one of the five grounds provided for in the Convention, given her personal situation. [47] Secondly, paragraph 97(1)(b) of the IRPA states that status of person in need of protection cannot be conferred when the threat or risk is caused by the country's inability to provide adequate health or medical care and in cases where other people from that country are generally exposed to the same risk. In the circumstances, the appellant did not explain how the risk of COVID-19 would be different for her compared to a considerable portion of the population living in Haiti. [48] I am therefore of the opinion that the appellant failed to demonstrate that her risk of being infected with COVID-19 in Haiti is a risk described in section 96 or 97 of the IRPA. CONCLUSION [49] In conclusion, like the RPD, I find that the appellant's allegations are not credible. For these reasons, I conclude that the appellant has not demonstrated that there is a serious possibility that she would be persecuted on one of the Convention grounds or that, on a balance of probabilities, she would be personally subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment if she had to return to Haiti. [50] As for the minor appellant, I am not of the view that there is a serious possibility that she would be persecuted on one of the Convention grounds or that, on a balance of probabilities, she would be personally subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment if she had to return to the United States. [51] I dismiss the appeal and confirm the RPD's determination that the appellants are neither Convention refugees nor persons in need of protection. (signed) Jillan Sadek Jillan Sadek August 6, 2020 Date IRB translation Original language: French 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Protection Act, subsection 110(4). 3 Singh v. Canada (Citizenship and Immigration), 2016 FCA 96, para. 64, and Raza, Syed Masood v. M.C.I. (FCA, No. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385 [Raza]. 4 SPR-1, Delmas police station, report, Refugee Protection Division (RPD) record, p. 133. 5 P-2, Appellant's memorandum, paragraph 13, appellant's record, p. 12. 6 At approximately 0:09:00 of the recording of the RPD hearing on May 27, 2019. 7 At approximately 0:24:00 of the recording of the RPD hearing on May 27, 2019. 8 At approximately 0:25:00 of the recording of the RPD hearing on May 27, 2019. 9 At approximately 0:28:00 of the recording of the RPD hearing on May 27, 2019. 10 At approximately 1:32:00 of the recording of the RPD hearing on May 27, 2019. 11 At approximately 1:33:00 of the recording of the RPD hearing on May 27, 2019. 12 SPR-1, Threatening letter, RPD record, p. 135 13 At approximately 1:37:00 of the recording of the RPD hearing on May 27, 2019. 14 SPR-1, Excerpt from Registry minutes and letter from lawyer, RPD record, pp. 139 and 142. 15 At approximately 1:48:00 of the recording of the RPD hearing on May 27, 2019. 16 Minutes 02:14:00 to 02:15:00 of the recording of the RPD hearing on May 27, 2019. 17 P-2, Appellant's memorandum, paragraphs 20-21, electronic version of appellant's record, p. 5. 18 SPR-1, Letter from former manager, RPD record, p. 157. 19 Minutes 0:39:00 to 0:40:00 of the recording of the RPD hearing on May 27, 2019. 20 P-2, Appellant's memorandum, paragraph 22, electronic version of appellant's record, p. 5. 21 SPR-1, Account, RPD record, p. 43. 22 Minutes 01:10:00 to 01:11:00 of the recording of the RPD hearing on May 27, 2019. 23 At approximately 01:11:00 of the recording of the RPD hearing on May 27, 2019. 24 P-2, Appellant's memorandum, paragraph 27, electronic version of appellant's record, p. 6. 25 P-2, Appellant's memorandum, paragraph 29, electronic version of appellant's record, p. 6. 26 P-2, Appellant's memorandum, paragraph 33, electronic version of appellant's record, p. 7. 27 SPR-1, RPD record, document 3, Archive - National Documentation Package on Haiti, March 29, 2019, Tab 5.3: Violence against women, including sexual violence; state protection and support services (2012-June 2016). Immigration and Refugee Board of Canada. December 15, 2016. HTI105161.FE. 28 SPR-1, Immigration forms, RPD record, p. 100. 29 SPR-1, Stamps in appellant's passport, RPD record, pp. 111-112. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-17045 MB9-17046 RAD.25.02 (January 2020) Disponible en français 13 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