MB9-01508

RAD File No. / No de dossier de la SAR : MB9-01508 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision November 18, 2019 Date de la décision Panel Pascale Aubin Tribunal Counsel for the person who is the subject of the appeal Darius Constantin 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 XXXX, the appellant, a citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD) dated November 26, 2018, rejecting his refugee protection claim. The RPD determined that he is neither a Convention refugee under section 96 of the Immigration and Refugee Protection Act (IRPA), nor a person in need of protection within the meaning of subsection 97(1) of the IRPA. [2] The appellant stated that he fears being killed by his neighbour should he return to Haiti. [3] The appellant alleged that his neighbour cut off the water to his land to prevent him from cultivating it, and threatened to kill him. [4] The appellant alleged that he left Haiti in XXXX 2016, and lived in Brazil until XXXX 2016. [5] The appellant arrived in the United States in XXXX 2016, where he lived until XXXX 2017. He arrived in Canada in XXXX 2017 and claimed refugee protection. The Minister did not intervene with regard to a possible exclusion under Article 1E of the Convention. The RPD found that the appellant was not excluded. APPLICABLE STANDARD OF REVIEW [6] For questions of fact, mixed fact and law, and law, the Refugee Appeal Division (RAD) applies the standard of correctness. Unless stated otherwise in my reasons, I have applied the correctness standard of review to all findings. ANALYSIS [7] I find that the determinative issue in this case is that of prospective risk. I note that the RPD concluded that the appellants testified in a credible and trustworthy manner concerning the events that occurred in Haiti. However, I am of the view that even if the appellants' allegations regarding the incidents of 2016 are credible, the appellant did not establish that there is a serious possibility of persecution or, on a balance of possibilities, that there is a risk to their lives or other harm set out in section 97 of the IRPA should he return to Haiti. [8] In his memorandum, the appellant alleges that the RPD erred in finding that he would be subjected to a generalized risk should he return to Haiti. More specifically, the appellant alleges that the RPD did not properly assess the lack of personalized risk. He argues that the RPD erred in finding that there is a generalized risk because it did not clearly define which risk he would face, to then determine whether it was a generalized risk. In his memorandum, the appellant submits that the neighbour personally threatened him because of the land dispute between them, and therefore, the risk is different from the risk that the other neighbours could face. [9] I find that the RPD did not properly complete both steps of the analysis under section 97 of the IRPA.1 I am of the opinion that the RPD did not clearly define in its reasons the exact nature of the risk, because it conducted an analysis of the generalized risk, but failed to examine whether the neighbourhood was a subgroup that was large enough to find that it was indeed a generalized risk. [10] However, in this case, the determinative issue is whether the evidence establishes that the appellant would be subjected to a serious possibility of persecution or, on a balance of probabilities, to a risk of harm set out in section 97 of the IRPA if he were to return to Haiti. After an independent analysis of the record and after carefully listening to the recording of the hearing, I find that this is not the case, for the reasons that follow. Prospective risk [11] On September 3, 2019, the RAD sent the appellant a notice asking him for submissions on the issue of prospective risk.2 In his response to the notice, the appellant maintains that he is personally targeted by a violent person, known in Haiti for being a criminal. The appellant argues that the rivalry, originating from a land dispute, has become personal. He submits that he would be targeted by his agent of persecution should he return to Haiti, and that this is a clear prospective risk. [12] During the hearing, the appellant testified that his neighbour could kill him if he returns to Haiti, given that he was jealous of the harvest from his land.3 The RPD member questioned the appellant to determine the reasons behind his fear of returning to Haiti. Several questions were put to him on this subject. The answer was always the same: he feared his neighbour who was jealous of the yield of his agricultural land.4 When asked how many neighbours there were, he replied [translation] "that the property is very large." The appellant explained that the water was for all the properties.5 [13] When asked to specify which elements formed the basis of his fear, the appellant described how the neighbour cut off his water to prevent him from watering his land, and threatened him with a machete telling him not to return to his property or he would kill him. He also indicated that a few months ago, the neighbour told his mother that there was no problem with his other family members, rather, the dispute was with him alone.6 [14] Furthermore, when the member asked him if the neighbour had had problems with other people in his town, the appellant replied [translation] "yes, because when he says something, he does it, so there were many people who were afraid of him."7 When asked to provide examples, he explained that during a XXXX XXXX, the neighbour was very violent towards a XXXX who had XXXX XXXX XXXX XXXX XXXX XXXX XXXX.8 He indicated that everybody in the neighbourhood was afraid of him. The appellant stated [translation] "yes, since then, the people in the neighbourhood fear him, because when he says he will do something he actually does it."9 [15] In listening to the appellant's testimony at the hearing, I note that the member asked several questions to find out if the other people in the neighbourhood were afraid of the neighbour. The appellant stated several times that most of the other neighbours in the area were afraid of this individual. Although the appellant did state during the hearing that the neighbour had a problem with him alone, I note that when he was asked if there was other trouble with his neighbour, the appellant replied no, only the garden issue. I also note that since his departure, his mother has hired someone to continue to work on the land. [16] I cannot accept the appellant's argument that the land dispute has become a personal rivalry, because when he was asked if there were other difficulties with the neighbour, the appellant replied no, it was just the problem concerning the garden.10 Moreover, when asked whether he had heard from his neighbour, he stated that he is still in Haiti and that his mother had told him he was still in the area.11 I also note from the appellant's testimony that his mother and child are still in Haiti in the same house and have not had any problems. [17] To be recognized as a person in need of protection under section 97 of the IRPA, the appellant must demonstrate, on a balance of probabilities, that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to Haiti. [18] In my analysis, I considered his neighbour's profile and assessed to what extent it could be expected that his resentment towards the appellant over their gardens, four years ago now, would lead him to still want to kill him. I find that the appellant did not establish, on a balance of the evidence, that he is at risk of harm within the meaning of section 97 of the IRPA because of the conflict between him and his neighbour. [19] I have taken into account the fact that there was an incident in 2016 that did not escalate to an act of violence, that a period of four years has elapsed, that there have been no other problems with that individual since 2016, that the appellant no longer works on that plot of land, and that his mother and child still live in the same house without any problems. [20] Even though the appellant states that his neighbour is still in Haiti and that the neighbour allegedly told his mother that he does not have a problem with the other family members but just with him, the appellant did not submit any evidence that since the confrontation, the neighbour had made any attempts whatsoever to find him. [21] In light of the evidence submitted by the appellant-that there was an incident in 2016 that did not escalate to an act of violence, that he had had no other problems or contact with this individual since 2016, that he no longer works on the land in question, and that his family still lives in the same house without any problems-I cannot conclude on a balance of the evidence that the neighbour still wishes to harm him. The appellant has failed to establish that he faces a prospective risk. [22] In addition, when the appellant was asked why his neighbour would want to kill him now if he no longer works on the land, he explained that [translation] "the neighbour has a cold heart and if he says he shall do something, he must do it."12 He also testified that the neighbour has never forgotten him.13 In my view, these explanations are not satisfactory because they do not demonstrate the neighbour's willingness to harm him. I am of the opinion that the fact that he had a disagreement about his garden in the past with a criminal who shared water with several neighbouring properties does not constitute a prospective risk. [23] In these circumstances, there is no fact that indicates that he is targeted by his neighbour or by other people today. [24] Therefore I find that the appellant has failed to establish that he would face a serious possibility of persecution on one of the Convention grounds if he were to return to Haiti or, on a balance of probabilities, that he would face a risk of harm described in section 97 of the IRPA. [25] Although the appellant did not challenge the fact that he does not meet the criteria of section 96 because there is no nexus to one of the five Convention grounds, after my independent analysis of the entire record, I am of the opinion that the RPD finding to this effect is correct. CONCLUSION [26] For these reasons, I determine that the appellant would not face a serious possibility of persecution, or, on a balance of the evidence, a risk to his life or a risk of cruel and unusual treatment or punishment. [27] 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, pursuant to paragraph 111(1)(a) of the IRPA. [28] The appeal is dismissed. (signed) "Pascale Aubin" Pascale Aubin November 18, 2019 Date IRB translation Original language: French 1 Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210, para. 27. 2 Letter from the Refugee Appeal Division. 3 SPR-1, Refugee Protection Division (RPD) record, Tab 6.3, Basis of Claim Form (BOC Form), pages 19 and 20. 4 SPR-1. RPD record, Tab 6.3, BOC Form, page 27. 5 Recording of the RPD hearing of October 18, 2019, from 1:17 to 1:19. 6 Recording of the RPD hearing of October 18, 2019, from 33:33 to 34:54. 7 Recording of the RPD hearing of October 18, 2019, approximately 35.29. 8 Recording of the RPD hearing of October 18, 2019, from 38:45 to 40. 9 Recording of the RPD hearing of October 18, 2019, from 40 to 40:41. 10 Recording of the RPD hearing of October 18, 2019, from 1:14 to 1:15. 11 Recording of the RPD hearing of October 18, 2019, from 1:10 to 1:11. 12 Recording of the RPD hearing of October 18, 2019, from 1:28 to 1:28:30. 13 Recording of the RPD hearing of October 18, 2019, from 1:28 to 1:30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-01508 RAD.25.02 (April 4, 2019) Disponible en français 6 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 4, 2019) Disponible en français