MB4-01261

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. / N° de dossier de la SAR : MB4-01261 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 Montréal, Quebec Appel instruit à Date of decision July 17, 2014 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal François Jean Denis Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] She is not submitting any new evidence in support of her appeal, but is requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" pursuant to section 97 of the IRPA. BACKGROUND [4] The appellant is a 52-year-old woman who alleged before the RPD that she worked in Haiti as an XXXX XXXX XXXX XXXX XXXX XXXX. [5] The appellant alleged that she received a telephone call from a stranger on XXXX XXXX, 2013, ordering her to cooperate with some XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. She alleged that, the next day, she called in and met with some of the XXXX XXXX XXXX XXXX, but that they denied being the source of the telephone call. [6] The appellant alleged that she received two more threatening telephone calls during the afternoon of XXXX XXXX, 2013, ordering her to cooperate with the XXXX within 10 days. She allegedly informed the police. [7] The appellant alleged that she was followed by two armed men on a motorcycle on XXXX XXXX, 2013. That same night, she allegedly received a threatening telephone call from an individual who claimed responsibility for that attack. She alleged that she moved in order to protect herself. [8] The appellant alleged that she learned from neighbours that, on XXXX XXXX XXXX 2013, some individuals fired shots in front of her home and uttered threats against her. She then reportedly made the decision to leave her country, but the airplane tickets that she obtained were only for XXXX XXXX, 2013. [9] The appellant alleged that she continued to receive threats on her new telephone, even after she moved again. [10] The appellant left her country for the United States on XXXX XXXX XXXX 2013, and she arrived in Canada on XXXX XXXX XXXX 2013. She claimed refugee protection on January 3, 2014. [11] The RPD rejected the claim for refugee protection on the grounds that the appellant's main allegations were not credible, for reasons that will be set out below in the "Analysis" section. The RPD also concluded that the evidence submitted did not demonstrate that the appellant would be subjected to a serious possibility of persecution simply by reason of her membership in a particular social group, namely, that of [translation] "women." [12] Before the RAD, the appellant submits that the RPD erred in its assessment of her credibility, for reasons which will also be reviewed later in the "Analysis" section. She also submits that the RPD erred in its analysis of her fear by reason of her membership in a particular social group, namely, that of "women," since the evidence submitted demonstrates that it is more likely than not that she would be a victim of rape in Haiti. [13] For these reasons, the appellant is requesting that the RAD set aside the RPD's determination and grant her status as a person in need of protection. DECISION ON WHETHER TO HOLD A HEARING [14] In the conclusions in her memorandum, the appellant requests that the RAD hold another hearing to establish her credibility. [15] Under subsection 110(6) of the IRPA, the RAD may hold a hearing if, in its opinion, the new documentary evidence presented on appeal is admissible and meets the following three criteria: 1) it raises a serious issue with respect to the person's credibility; 2) it is central to the decision with respect to the refugee protection claim; and 3) if accepted, it would justify allowing or rejecting the refugee protection claim. [16] Since the preliminary requirement to this provision has not been met in this matter, in that no new evidence was presented on appeal, I find that a hearing cannot be held in this case. STANDARD OF REVIEW [17] The IRPA does not expressly set out the standard of review that the RAD should apply when reviewing RPD decisions. In this case, the appellant submits that the RAD must apply the reasonableness standard of review. [18] In the recent Iyamuremye1 decision, the Honourable Justice Shore of the Federal Court of Canada states the following in paragraph 40: [40] In this case, the Court is entirely in agreement with the RAD that the standard of review to be applied to findings of fact made by the RPD is reasonableness. It is well established that an appellate body must review the findings of a trial court by applying a correctness standard to findings that involve questions of law, and applying a reasonableness standard to those involving questions of mixed fact and law (White, above; also, Budhai, above; and Furlong, above). [19] In this case, the issue of whether the RPD erred in its assessment of the appellant's credibility is a question of fact. [20] The issue of whether the evidence submitted demonstrates a serious possibility of persecution by reason of the appellant's membership in a particular social group, namely, "women," is a question of mixed fact and law. [21] I will therefore apply the reasonableness standard of review to these two issues. [22] In paragraph 47 of Dunsmuir,2 the Supreme Court of Canada states that "reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." Judicial deference is therefore required, and deference must be given to the RPD decision. ANALYSIS [23] The first issue is whether the RPD erred in its assessment of the appellant's credibility. [24] In arriving at the finding that the appellant's main allegations are not credible, the RPD found that, in general, [translation] "her testimony was inconsistent, contradictory, vague and general on some aspects where she was clearly trying to avoid the panel's questions."3 The panel provides the following examples: - The appellant's testimony was [translation] "painstaking" and contradictory regarding which group of XXXX she had called in and met with after she allegedly received threats on XXXX XXXX, 2013. The RPD notes that the appellant initially testified that she only called in one group of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and then she stated that she had called in all the XXXX, only to subsequently state that she had met with XXXX XXXX XXXX XXXX. [25] The appellant submits to the RAD that the RPD should not have drawn negative inferences from this contradiction, and have retained the appellant's last version of the facts-that she had called in and met with XXXX XXXX XXXX XXXX-as the truth. [26] In my opinion, it was reasonable for the RPD to draw negative inferences as it did from this testimony. In paragraph 15 of its reasons, the RPD clearly explains the contradictions on which it based its finding, and states that the testimony was painstaking, and states that it was of the opinion that the meeting with the XXXX is important in the claim for refugee protection, considering that some of these XXXX XXXX XXXX XXXX XXXX XXXX were, according to the appellant, behind the alleged threats. - The RPD was of the opinion that the appellant's behaviour was inconsistent since she did not take any precautions after being threatened on XXXX XXXX and XXXX XXXX 2013, and simply carried on with her business. It is implied that the RPD did not appear to consider the appellant's explanations reasonable when she stated that she felt protected after having filed a complaint with the police, whose slogan is allegedly protecting victims 24 hours a day. The RPD refers to documentary evidence that indicates that the police in Haiti do not enjoy such a reputation. [27] Regarding police protection in Haiti, the appellant submits in her memorandum that, on one hand, she believed that the police could protect her and she accepted their slogan; however, on the other hand, the police's reputation is well known in Haiti and if she actually believed that the police could protect her, she would not have claimed refugee protection in Canada. She criticizes the RPD for [translation] "lecturing" her and not providing an in-depth analysis of the file, but being content to cherry-pick certain elements from the testimony. [28] In my opinion, the submissions regarding the appellant's expectations of the police in Haiti are contradictory, and the fact that she was aware of the Haitian police's reputation is, in fact, at the heart of the inconsistency raised by the RPD. Consequently, I am of the opinion that it was reasonable for the RPD to draw negative inferences from this inconsistency and that nothing demonstrates that it was selective in choosing elements from the appellant's testimony, as the latter alleges. - The RPD was of the opinion that the appellant's behaviour was inconsistent with that of someone who fears being raped, beaten and killed, considering that she testified that she moved on XXXX XXXX XXXX 2013, in order to flee her potential attackers, but that she continued to go to work, which is where the threats originated. [29] The appellant submits to the RAD that this behaviour is not inconsistent with that of someone who is experiencing fear, considering that she had responsibilities at school, that she had somebody accompany her there and that there were security guards at the school. [30] I am of the opinion that it was reasonable for the RPD to draw negative inferences from that, as it did, and for the reasons given, notably that the threats actually came from XXXX XXXX XXXX XXXX, and from the fact that the appellant nevertheless went to the trouble of moving in order to protect herself, therefore concluding that these threats were serious. - The RPD was of the opinion that waiting almost four months after she left Haiti before claiming refugee protection undermined her credibility. The RPD did not find the appellant's explanations to be reasonable when she stated that she wanted to be forgotten so that she could then return to Haiti, but that she decided to claim refugee protection when she found out on XXXX XXXX XXXX 2013, that people had come looking for her in Haiti. This is due, in particular, to the fact that the appellant writes in the Basis of Claim Form (BOC Form) that [translation] "considering the scope of the threats, I decided to leave the country in order to find a place of asylum where I can put my knowledge and experience to work in the host country." [31] The appellant submits to the RAD that she made sure that she was not able to return to her country before she claimed refugee protection and that the RPD should appreciate the fact that she thought things through before claiming protection. [32] Once again, I am of the opinion that it was reasonable for the RPD to draw negative inferences, as it did, from the delay in claiming refugee protection, for the reasons set out. Nevertheless, as stated by the RPD, this element is not in itself fatal to the claim for refugee protection. - Lastly, the RPD did not grant any probative value to the document submitted as evidence: "Extrait des minutes du greffe du Tribunal de Paix de XXXX" [extract from minutes of the XXXX peace court registry], dated XXXX XXXX XXXX 2013. This document is allegedly related to the incident that took place on XXXX XXXX XXXX 2013, when some individuals reportedly fired shots in front of her home and uttered threats, since that document states that the incident took place at night, contrary to the appellant's testimony, and that the appellant herself filed a complaint, which is contrary to her testimony, in which she states that it was her neighbour who went to the police. [33] The appellant maintains that it was normal for the complaint to be in her name, since she gave her neighbour her identification number so that she could file the complaint. [34] I am of the opinion that it is once again reasonable for the RPD to not grant any probative value to this document for the reasons stated and, I would also add, because the RPD had already found that the appellant's testimony, overall, was undermined because it contained contradictions and inconsistencies. [35] In light of all the aforementioned, I am therefore of the opinion that the RPD's finding regarding the credibility of the appellant's main allegations is reasonable. [36] The second issue in this case is whether the RPD erred when it concluded that the appellant had not demonstrated that there was a serious possibility of persecution simply by reason of her membership in a particular social group, namely, "women." [37] The RPD's conclusion on this point is based on the testimony of the appellant, who claims to fear returning to Haiti because she is targeted by individuals who started threatening her on XXXX XXXX XXXX 2013. She testified that she would not fear returning to Haiti, were it not for these alleged threats. Moreover, the appellant came to Canada twice in 2012, and voluntarily returned to Haiti each time, explaining that she had no problems at that time, and repeating that her problems started in XXXX 2013. [38] The RPD is therefore of the opinion that the appellant's fears as a [translation] "woman" are directly related to the alleged incidents that started in XXXX 2013, incidents that the RPD did not believe. The RPD therefore concluded that there was insufficient evidence to demonstrate that, should the appellant return to Haiti, she would be subjected to a serious possibility of persecution simply by reason of her membership in a particular social group, namely, "women." [39] The appellant submits before the RAD that the documentary evidence filed regarding the situation of women in Haiti demonstrates that [translation] "it is more likely than not that she would be a victim of rape." [40] In my view, the appellant failed to demonstrate that the RPD's conclusion on this matter is unreasonable. [41] On one hand, the RPD's decision is based on the fact that the appellant's testimony, as well as past incidents, namely, the two voluntary returns to Haiti, demonstrate that the latter does not have a subjective fear of persecution simply by reason of her membership in a particular social group, namely, "women." On the other hand, I am of the opinion that the appellant does not demonstrate in her memorandum that the documentary evidence, which she does not cite at any time, supports her submission that her fear of persecution simply by reason of her membership in the said particular social group is objectively well-founded. [42] As a result of the foregoing, I find that, on the whole, the RPD's decision is reasonable, as it is transparent, intelligible and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. REMEDY [43] For all these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection." [44] The appeal is dismissed. Normand Leduc Normand Leduc July 17, 2014 Date IRB translation Original language: French 1 Iyamuremye v. M.C.I., 2014 FC 494, May 26, 2014. 2 Dunsmuir v. New Brunswick, 2008 SCC 9, (2008) 1 SCR 190. 3 Paragraph 14 of the RPD reasons. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-01307 RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01261 10