MB5-05862

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 : MB5-05862; MB5-05863; MB5-05864 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision September 9, 2016 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the persons who are the subjects of the appeal François Jean Denis 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 [1] The appellant, XXXX XXXX XXXX, and her two minor children, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, citizens of Haiti, are appealing against the decision of the Refugee Protection Division (RPD) that rejected their claims for refugee protection by determining that they are not "Convention refugees" under section 96 of the Immigration and Refugee Protection Act (IRPA) or "persons in need of protection" under section 97 of the IRPA. [2] The appellant did not submit any new evidence within the meaning of subsection 110(4) of the IRPA. She is asking to be heard in French, should the Refugee Appeal Division (RAD) agree to hold a hearing. [3] The Minister did not intervene in the appeal. DETERMINATION OF THE APPEAL [4] Under subsection 111(1) of the IRPA, the RAD sets aside the determination of the RPD to the effect that XXXX XXXX XXXX and her two minor children, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. As the determination cannot be substituted for the one that should have been made, the files are referred to the RAD for re-determination by a differently constituted panel. [5] The appeal is allowed. DESIGNATED REPRESENTATIVE [6] On October 20, 2015, the RAD confirmed XXXX XXXX XXXX as the designated representative of her minor children, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, pursuant to subsection 167(2) of the IRPA and subrule 23(1) of the RAD Rules. FACTUAL BACKGROUND [7] The principal appellant (the appellant), XXXX XXXX XXXX, is accompanied by her minor children, who are basing their claims for refugee protection on that of their mother. Below is a summary of the facts set out in the appellant's Basis of Claim Form (BOC Form). Before leaving Haiti, she worked as a XXXX XXXX in a XXXX laboratory. In XXXX 2015, having found that supplies were missing from a delivery, she made a report to the person in charge of human resources. Following this, XXXX employees were fired. [8] Several weeks later, her problems began. In late XXXX 2015, she was in one of the laboratories when two individuals asked for her. She states that, in the evening, she received a call from an unknown individual who told her that she was being sought by an organized group that wanted to make her pay for the trouble she had caused. The claimant states that she filed a complaint at the police station and informed her superiors of the situation. [9] In July 2015, she traveled to the United States for her annual vacation. On July 30, 2015, when she returned to work, her colleagues told her that unknown individuals had asked for her. The claimant states that, on the next day, she received an anonymous call from an unknown individual who threatened her. During the night of August XXXX XXXX XXXX, 2015, criminals allegedly went to her home to try to kill her. They shook the gate and shouted her name. A justice of the peace came to survey the damage. Impugned decision [10] On November 24, 2015, the RPD rejected the claim for refugee protection, stating: [translation] "Too many things in this story just do not add up for the panel to believe it. While the presumption of the benefit of the doubt could be applied to each aspect of the story when viewed separately, when they are considered all together, they form an inconsistent, implausible whole." Below are the factors identified by the RPD as having undermined the credibility of the claimant's allegations that her life and the lives of her children are in danger in Haiti. - Her failure to seek asylum or try to regularize her situation during her visit to the United States in the summer of 2015. - The fact that she did not try to find out whether any unfortunate events had happened while she was vacationing in the United States and the fact that she thought it was normal that no one tried to warn her about the danger she was facing in Haiti. - The RPD does not believe her allegations that she was threatened after returning from the United States because she did not take serious measures to protect herself and continued to work and live at the same place. - The RPD also does not believe her explanations that she forgot to mention on her initial BOC Form that she had been threatened while living at a friend's house. According to the RPD, the refugee protection claimant tried to embellish her story by amending her BOC Form. - The RPD does not believe that the claimant's husband remained in Haiti because he lost his passport. - As regards her membership in the particular social group of women, the RPD is of the opinion that the mere fact that she fears being raped is not sufficient in and of itself to give her and her daughter the status of "Convention refugees." GROUNDS FOR APPEAL AND REMEDY SOUGHT Appellant's claims [11] The appellant submits the following three grounds for appeal: * Lack of thoroughness in assessing the claimant's credibility. * The member's selective approach when assessing the appellant's credibility. * Lack of in-depth analysis of the refugee protection claim. [12] Based on Maldonado, it is submitted that "where a claimant swears that certain facts are true, this creates a presumption of truthfulness unless there is reason to doubt their truthfulness." The appellant submits that the panel [translation] "focused on details rather than on the bulk of the evidence, which led to its misinterpretation of the evidence. Moreover, the panel was too quick to apply North American logic and reasoning to the claimant's behaviour. Because there was a breach of the principle of natural justice," the appellant is asking the RAD to set aside the determination of the RPD. Holding a hearing [13] In Singh,1 the Federal Court of Appeal reiterated the principle that the RAD proceeds without holding a hearing. According to the Court, this principle "is subject to an exception only where the documentary evidence (a) raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) is central to the decision with respect to the refugee protection claim; and (c) if accepted, would justify allowing or rejecting the refugee protection claim." [14] In this case, the appellant did not submit any new evidence in support of her appeal. Consequently, the RAD cannot hold a hearing. Role and functions of the RAD [15] In Huruglica,2 the Federal Court of Appeal ruled on the scope of appeals to the RAD. On behalf of the Court of Appeal, Justice Gauthier pointed out that Parliament's intent should be determined by referring first to the legislation, specifically to sections 110 and 111 of the IRPA. Moreover, Parliament's intent in creating the RAD was for it to serve as a safety net to catch errors in law or fact made by the RPD. [16] As for the level of deference owed to the RPD's findings, the Court of Appeal states that the level of deference "owed in each case" varies. According to the Court, "the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law." [17] In response to the question reformulated by the Court of Appeal, the Honourable Justice Gauthier states: [103] ...with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. [18] Taking into account what has been decided, I will conduct an independent analysis of the evidence in order to come to my own conclusion regarding this refugee protection claim and determine whether the decision of the RPD is correct. If an error of fact, law, or mixed fact and law was made, I will intervene using one of the means set out in sections 110 and 111 of the IRPA. MERITS OF THE APPEAL [19] The appellant alleges that, since the dismissal of certain employees from the laboratory in XXXX 2015, her life has been in danger in Haiti. She fears that she or her daughter will be raped if they return to Haiti. [20] The RPD did not believe the appellant's story because she continued to go about her business and live in the same place although she alleges she was being threatened. The RPD also took into account the fact that the appellant travelled to the United States, that she did not try to secure her situation, and that she did not try to ask her work colleagues whether any unfortunate events had happened during her absence. Finally, the RPD noted that the claimant neglected to indicate on her initial BOC Form that she had received a threatening call while living in hiding at a friend's house. [21] As regards her fear because she is a woman, the RPD wrote in paragraph 24: [translation] The panel is of the opinion that this factor alone is insufficient to grant her refugee protection. Admittedly, the documentary evidence indicates that sexual assault is very frequent in Haiti and women are vulnerable, but the panel notes no factors, more specifically with regard to the principal claimant, that would allow for such a conclusion. [22] The credibility issues are questions of fact with regard to which the RPD generally has an advantage over the RAD because it sees and hears the witnesses. However, the degree of restraint owed to the RPD "ought to be addressed on a case-by-case basis.... [T]he RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim."3 [23] The appellant argues that the RPD's assessment of her credibility and her refugee protection claim lacked rigour and depth. She also adds that the RPD erred in its analysis of her and her daughter's fear of persecution by reason of their gender. [24] I have carefully examined all the evidence on the record and I find that the determination of the RPD should be set aside for the following reasons. [25] It is recognized that rape is generally a gender-based act of violence. Regarding this matter, in Josile,4 Justice Martineau recalled the statements of the Supreme Court in R v. Osolin [1993] 4 S.C.R. 595: "it cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the other forms of assault, is an act of violence. Yet it is something more than a simple act of violence. Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women." (Osolin, above, in paragraph 165). [26] The framework of analysis suggested by Guideline 45 states that "[t]he gender-defined group cannot be defined solely by the fact that its members share common persecution." In Dezameau, Justice Pinard stated: 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." [27] I agree that the mere fear of being raped is insufficient to grant refugee status. However, in this case, given the fact that the RPD is of the opinion that [translation] "the documentary evidence indicates that sexual assault is very frequent in Haiti and women are vulnerable," I find that the RPD should have further substantiated its decision. It should have explained the reasons why it was not justified to grant refugee protection to the claimant and her daughter. Considering the seriousness of the alleged risk and the fact that it is in line with the Convention, the RPD should have determined whether there was a serious possibility that the risk feared would materialize. By not conducting such an analysis and failing to explain why, in its opinion, there were no [translation] "specific factors" that would enable it to come to such a conclusion, the RPD erred. For this reason, I find that the determination must be set aside and the analysis of the prospective risk must be carried out by a differently constituted panel. [28] Although the RAD has the authority to substitute the determination with the one that should have been rendered, it cannot do so without questioning the appellant further about the well-foundedness of her fear of returning owing to the fact that, among other things, she travelled outside the country and returned after each trip. Credibility assessment [29] In paragraph 20, the RPD wrote: [translation] "Too many things in this story just do not add up for the panel to believe it. While the presumption of the benefit of the doubt could be applied to each aspect of the story when viewed separately, when they are considered all together, they form an inconsistent, implausible whole." [30] One of the elements taken into account by the RPD is that it does not believe that the appellant's husband remained in Haiti because he had lost his passport. The appellant submitted Exhibit C-6, a report of a complaint filed by her husband following the loss of his passport.6 However, the RPD ignored that document and several other exhibits that were submitted to substantiate the facts alleged.7 [31] Although the RPD is presumed to have assessed all the evidence submitted and that it need not mention every piece of evidence in a decision,8 given the nature and importance of the evidence that was submitted, I am of the opinion that the RPD should have referred to this evidence and explained the probative value assigned to it to corroborate the appellant's allegations. In this case, its failure to refer to the evidence constitutes an error justifying the intervention of the RAD. CONCLUSION [32] For these reasons, the RAD sets aside the determination of the RPD, namely, that XXXX XXXX XXXX, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. As it is unable to substitute the determination with the one that should have been made without questioning the appellant, the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [33] The appeal is allowed. Maria De Andrade Me Maria De Andrade September 9, 2016 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Idem. 4 Josile v. Canada (Minister of Citizenship and Immigration) 2011 FC 39. 5 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, IRB, Ottawa, November 13, 1996. 6 RPD Record, page 163. 7 RPD Record, pages 159 to 164, Exhibits C-4, C-5 and C-7. 8 Akram v. Canada (Minister of Citizenship and Immigration), 2004 FC 629. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-05862 MB5-05863 MB5-05864 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-05862; MB5-05863; MB5-05864 9 RAD.25.02 (7 février 2014) Available in English