MB9-10023

RAD File No. / No de dossier de la SAR : MB9-10023 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 / entendu à Date of decision October 14, 2020 Date de la décision Panel Me Anne-Thierrie Tétreault Tribunal Counsel for the person who is the subject of the appeal Me Jean-François Seguy 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] XXXX XXXX XXXX (the appellant), a citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. She is asking the Refugee Appeal Division (RAD) to allow the appeal and refer the matter to the RPD for re-determination or to substitute its own determination. [2] The RPD did not believe the allegations that form the basis of the appellant's refugee protection claim due to a lack of credibility with respect to the alleged facts. It concluded that the appellant did not have a reasonable fear1 that she would be persecuted by reason of being a woman if she had to return to Haiti. [3] The appellant argues that the RPD erred when it failed to consider the evidence concerning her allegation that she belongs to the particular social group of "women fearing gender-based persecution" and when it failed to consider the lack of state protection and of medical care. DETERMINATION [4] I dismiss the appeal. The RPD was correct in determining that the appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [5] The appellant fears for her life following incidents that occurred in Haiti. In her Basis of Claim Form (BOC Form), amended2 on XXXX XXXX XXXX 2019, she alleges that she was attacked and raped by an armed individual on XXXX XXXX XXXX 2014. She then reportedly went to the home of one of her clients who was a nurse. This person apparently provided her with medical care. [6] In XXXX 2015, she went to the United States to make purchases for her business and then returned to Haiti. [7] She also alleges that, on XXXX XXXX XXXX 2015, as she was going to the bank near her business to make a deposit, several individuals surrounded her and a thief accompanied by two other armed individuals on motorcycles attacked her. The first one allegedly struck her and apparently stole her bag. [8] On XXXX XXXX XXXX 2016, she left Haiti to go to Florida. On XXXX XXXX XXXX 2017, she entered Canada via Roxham Road and claimed refugee protection here. ROLE OF THE REFUGEE APPEAL DIVISION [9] My role is to examine all of the evidence and determine whether the RPD's decision is correct.3 [10] I will therefore conduct my own independent analysis of the record to determine whether the RPD committed the errors alleged by the appellant. ANALYSIS [11] During my full and independent analysis, I considered all of the evidence provided, Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4), and the recording of the hearing held before the RPD on March 13, 2019. [12] The determinative issue is whether the RPD erred in its assessment of the appellant's credibility and alleged prospective risk. Credibility [13] Listening to the recording of the hearing led me to conclude, like the RPD, that the appellant gave contradictory testimony. [14] The RPD gave the appellant several opportunities to state what she feared in Haiti should she return. The appellant kept giving a general response, stating that she fears criminals and insecurity. When the RPD asked her to explain why she fears criminals, she stated that she fears them [translation] "because they can do anything to you, harm you, point a weapon at you and take your bag." She also stated that she fears for her children who remained in Haiti. [15] Given what the appellant alleges to have experienced in XXXX 2014, I consider this response surprising. I would have expected her fear to be directly related to the alleged assault in XXXX 2014. Only later, when the RPD asked her what she had been a victim of, did she claim to have been raped. Incident on XXXX XXXX XXXX 2014 [16] The RPD did not believe the allegation that a sexual assault took place on XXXX XXXX XXXX 2014, due to omissions and contradictions between the appellant's testimony and BOC Form. [17] In her memorandum, the appellant argues that the RPD erred when it did not believe that an assault took place on XXXX XXXX XXXX 2014, and when it rejected the explanations given for the amendment to her story. [18] In my opinion, the RPD is correct in its finding regarding this allegation. The RPD was correct to question the appellant's credibility with respect to the rape in 2014. [19] Although it is entirely possible and acceptable to make an amendment to a BOC Form at the beginning of a hearing, the nature of the omission and its impact on the refugee protection claim may undermine the appellant's credibility. The Federal Court recently reiterated this principle in Qi:4 [13] The requirements for completing a BOC form are set out in the Refugee Protection Division Rules, SOR/2012-256. The BOC form is intended to provide details about the claimant, his or her family, related documents, travel history, and the reasons for which refugee protection is sought. The presumption that a refugee claimant's sworn testimony is true may be rebutted where the applicant has not offered a reasonable explanation for material omissions (Tellez Picon v Canada (Minister of Citizenship and Immigration), 2010 FC 129 at para 12). [14] A refugee claimant may provide details in oral testimony that were not included in a personal information form without impugning the claimant's credibility, unless the omissions are significant to the claim (Ogaulu v Canada (Citizenship and Immigration), 2019 FC 547 at paras 18-20). A failure to mention material or key allegations of persecution is a reasonable basis for concern, although the omission of peripheral detail is not (Feradov v Canada (Minister of Citizenship and Immigration), 2007 FC 101 at paras 17-18). The accumulation of contradictions or omissions in an applicant's refugee claim can support a negative credibility finding (Gomez Florez v Canada (Minister of Citizenship and Immigration), 2016 FC 659 at para 28). [20] When asked about the omission and inconsistency between her initial BOC Form and amended BOC Form, the appellant explained that, due to the stress she felt when arriving at the border, she had not thought to mention the assault on XXXX XXXX XXXX 2014, and had allegedly only thought of the incident afterwards while reflecting. A few minutes earlier during the hearing, she also testified that her problems in Haiti had allegedly begun on that same date in 2014. Given the seriousness of the alleged incident, it is surprising that it would not have come to mind as she prepared her refugee protection claim. This constitutes a serious interference with her integrity and forms the very basis of her refugee protection claim, as she states that she fears persecution by reason of her gender. The explanation provided is insufficient and undermines her credibility. Furthermore, according to her forms, she entered Canada on XXXX XXXX XXXX 2017, and claimed refugee protection at the border the next day. However, it was not until XXXX XXXX that she completed and signed her initial BOC Form. The explanation given is not a reasonable justification for omitting a sexual assault from her refugee protection claim. [21] I understand that a person who has been raped may not wish to talk about it or provide details when preparing her forms. However, the appellant did not make reference to anything to this effect in her initial BOC Form. She did not refer to any incident allegedly occurring in 2014, even though she had over one month to prepare her written account. Her claim solely focused on the theft that occurred in 2015. I cannot consider this omission a minor breach or peripheral detail of her refugee protection claim. [22] In response to the appellant's arguments that this omission was caused, among other things, by the change in the counsel of record and by the RPD's refusal to grant a postponement, I conclude that the RPD did not err. The appellant testified that her former legal counsel withdrew from the case to go on maternity leave in XXXX 2018, and stated that she retained the services of her new legal counsel in XXXX 2019. The hearing took place in March 2019. From her arrival in Canada in XXXX 2017, to the signature of her initial BOC Form in XXXX 2017, and the change of counsel in 2018, the appellant had ample time to amend her written account and add the assault she allegedly experienced. This omission, which directly impacts the basis of the refugee protection claim, would not have been eliminated by a postponement, given the seriousness and importance of the omitted incident. The RPD did not breach the principles of procedural fairness when it refused the adjournment. [23] Furthermore, when the appellant described the assault during her testimony, she gave a different version of the incident than the one in her amended BOC Form. The RPD asked her whether she had been injured during the assault. The appellant initially stated that she had not been injured and that the assailant had pointed a weapon at her ear and had held her by the neck, resulting in some redness. However, in her amended BOC Form, she states: [translation] "An individual struck me with one blow and pointed a gun at my ear. He shook me and raped me."5 [24] As the appellant states in her memorandum, the fact that she refers to being hit in the head in her amended BOC Form does not mean that she was injured. In my opinion, this does not constitute an omission. In fact, the appellant did not state that she was injured in her amended BOC Form. That was more of an interpretation made by the RPD. With regard to this conclusion, I am of the opinion that the RPD erred. [25] However, I note that, when confronted by the RPD on what she had written in her amended BOC Form, the appellant spontaneously asked whether it had been included in the story of her counsel, XXXX XXXX XXXX. She then adjusted her testimony and explained that the individual had held the weapon, held her by the neck and hit her in the head. She explained the differences between her testimony and amended BOC Form by stating that she had spent little time with her counsel. [26] The RPD did not err in drawing a negative inference as to the appellant's credibility with regard to this incident. The appellant failed to make reference to this assault in her initial BOC Form and gave a different version of the incident during her testimony. This greatly undermines her credibility and makes it unlikely that the allegation is true. I agree with the RPD's conclusions and do not believe that the appellant was assaulted in XXXX 2014. Incident on XXXX XXXX XXXX 2015 [27] The RPD did not believe the appellant's allegations concerning the theft that took place on XXXX XXXX XXXX 2015. It noted an inconsistency and omission which undermine the appellant's credibility. [28] However, the appellant argues that these were minor contradictions regarding the central elements. [29] In her initial BOC Form, the appellant states that [translation] "a thief attacked me, hit me and took my purse, then left."6 In the amended version, she instead states that [translation] "a thief attacked me, while accompanied by two people on motorcycles, all of whom were armed. He hit me."7 At the hearing, the appellant explained that two individuals had stayed further back while the third had allegedly demanded that she give him her bag. The people in the crowd had apparently started screaming and reportedly fled the scene. The RPD gave her an opportunity to add details to her story but the appellant stated that she had nothing to add. The RPD then asked her why she had not stated that the criminals had been armed. [30] Despite the stress the appellant may have felt during the hearing, I cannot accept her explanations that criminals are always armed, especially since the RPD gave her the opportunity to further explain and elaborate on the 2015 incident. The RPD did not err in its analysis of this incident. Its decision is correct in this respect. Fear in Haiti by reason of being a woman [31] The RPD is of the opinion that, given the appellant's lack of credibility with regard to her allegations, she would not have a reasonable fear of persecution by reason of being a woman if she had to return to Haiti. [32] The appellant argues that the RPD erred when it failed to consider the evidence concerning her allegation that she belongs to the particular social group of women. She also argues that there is a lack of state protection and that the Board's decision did not include an explanation as to why the internal flight alternative (IFA) does not apply in her case. [33] In her testimony, the appellant failed to establish the existence of a serious possibility of persecution by reason of her gender should she return to her country of origin. Even though the RPD made reference to a reasonable fear of persecution rather than a serious possibility of persecution, as set out in section 96 of the IRPA, its review was still correct. [34] Pursuant to Guideline 4, it is important to first determine the linkage between gender, the feared persecution and one or more of the grounds of the Convention refugee definition. The appellant must establish that she has a genuine fear of harm, that one of the grounds of the definition under section 96 of the IRPA is the reason for the feared harm, that the harm is sufficiently serious to amount to persecution, that there is a reasonable possibility that the feared persecution would occur if she was to return to her country of origin and that she has no reasonable expectation of adequate national protection.8 In this case, the appellant failed to establish the above. [35] During her testimony, she admitted that she had left Haiti in XXXX 2016 because of her business,9 not because she feared for her life. That is also the reason why she did not claim asylum in the United States. After hearing that Canada had opened its borders, she decided to come here, seeing an opportunity for a brighter future for her children who were still in Haiti. She also confirms this situation in her amended BOC Form, where she states: [translation] "In XXXX 2015, I applied for a United States visa to go to Miami, Florida, to purchase other types of goods in order to increase my inventory."10 [36] She did not flee Haiti because she feared for her life, following the assault that allegedly took place in XXXX 2014 or because she had a fear due to being a woman. Although she had the opportunity to leave Haiti in 2015, she returned; therefore, her behaviour was inconsistent with that of a person fearing for her life by reason of her status as a woman. [37] She also testified in an emotional manner that she had primarily left Haiti to offer her children a better future. That has more to do with humanitarian and compassionate considerations and financial security. Neither the RPD nor the RAD has jurisdiction in these areas. [38] The RPD was correct in referring to Josile11 and Dezameau12 to assess the appellant's particular situation before making a conclusion regarding a serious possibility of persecution. [39] Although the documentary evidence reports on violence against women, it states that this violence often occurs in a family context and particularly targets women living in makeshift camps following the XXXX 2010 earthquake,13 which is not the case for the appellant. She testified that she ran a business in Haiti and that she still has family there who, according to her statements, still live in the same neighbourhood she lived in before leaving. She argues that that is why she cannot imagine living with her children, given the insecurity that prevails in the neighbourhood. However, she did not testify that they would be specifically affected by this insecurity. Today, her children are aged XXXXandXXXX XXXX. She failed to establish why it would be unimaginable for her to live with them. [40] The Federal Court has already stated that it would not be defensible to adopt a position whereby every Haitian woman who would be perceived as wealthy and who would be victim of an attack by bandits would qualify for refugee protection under section 96.14 The appellant has failed to establish, on a balance of probabilities, that she has personally been the victim of criminal acts in the past. Furthermore, she repeatedly testified that what she fears in Haiti are criminals in general. [41] Even if the appellant were given the benefit of the doubt with regard to the theft on XXXX XXXX XXXX 2015, it is settled law that a fear of criminal assaults does not constitute, in itself, persecution linked to one of the five Convention grounds.15 Given the rampant insecurity in Haiti,16 this risk is generalized.17 Internal Flight Alternative [42] In response to the appellant's argument in her memorandum that the RPD should perform an IFA analysis, I am of the opinion that the RPD was not required to take its review further, as it did not believe the appellant's allegations concerning her fears. If there is no basis for the fear, there is no reason to perform an IFA analysis. To have an IFA analysis performed, the appellant would have had to establish that, should she return to Haiti, she would be subject to a serious possibility of persecution or to a probability of risk to her life, which she failed to do. The same goes for state protection. Furthermore, the appellant testified that her family still lived in the neighbourhood where she had allegedly been attacked, yet did not state that they were having any problems. Therefore, there is no reason to perform an IFA analysis. Availability of medical care in Haiti [43] The RPD concluded that the appellant, who testified that she is diabetic, failed to establish that she would be unable to access health care in Haiti or that she would be prevented from accessing it on one of the Convention grounds. [44] In her memorandum, the appellant argues that the RPD erred when it failed to consider the hardships she would face in Haiti due to her health problems. [45] I agree with the RPD that the appellant failed to establish, through the evidence on the record or her testimony, that she would be unable to access adequate medical treatment for her diabetes in Haiti. She failed to explain why she would be at a disadvantage with regard to medical treatment for a reason linked to the Convention. Subparagraph 97(1)(b)(iv) expressly excludes the inability of a country to provide medical care from the definition of a person in need of protection. Inability to obtain medication for financial reasons is unfortunately not a factor that is considered when reviewing a refugee protection claim. [46] The facts of this case do not establish that the theft allegedly committed against her was based on one of the five Convention grounds, including being a woman. She failed to discharge her burden of establishing a serious possibility of persecution for her in Haiti. She also failed to establish, on a balance of probabilities, that she would be subjected to a risk of harm should she return to Haiti. For these reasons, I am of the opinion that the RPD's determination is correct. CONCLUSION [47] I dismiss the appeal and confirm the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Anne-Thierrie Tétreault Me Anne-Thierrie Tétreault October 14, 2020 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, at p. 13, RPD reasons, at para 32. 2 RPD record, at p. 15. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Qi v. Canada (Citizenship and Immigration), 2020 FC 400, at paras. 13-14. 5 RPD record, at p. 16. 6 RPD record, at p. 20. 7 RPD record, at p. 16. 8 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 9 Recording of the hearing, at 2:02:30. 10 RPD record, at p. 16. 11 Josile, Duleine v. Canada (Citizenship and Immigration), 2011 FC 39. 12 Dezameau v. Canada (Minister of Citizenship and Immigration), 2010 FC 559, at para 29. 13 National Documentation Package (NDP), Haiti, 1 September 2020, Tab 5.12: Haiti: Les violences faites aux femmes [Haiti: violence against women], 9 January 2017. 14 Gilot v. Canada (Minister of Citizenship and Immigrations), IMM-9856-12, Gagné, July 10, 2013; 2013 FC 771, at paragraphs 35 and 36. 15 Barthelemy v. Canada (Minister of Citizenship and Immigration), 2011 FC 1222, at para. 19. 16 NDP, Haiti, 1 September 2020, Tab 7.1: Haiti: The security situation, including crime and kidnappings; measures taken by the government and other stakeholders to fight crime (2014-June 2018). HTI106116.FE. 17 Prophète v. Canada (Citizenship and Immigration), 2008 FC 331, at para 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-10023 RAD.25.02 (January 2020) Disponible en français 10 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