TB8-06604

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 : TB8-06604 TB8-06605 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 23, 2018 Date de la décision Panel Linda Hart Tribunal Counsel for the person(s) who is(are)the subject of the appeal Stella I. Anaele Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX(the principal Appellant) and XXXX XXXX XXXX (the associate Appellant) are citizens of Saint Lucia. They appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. They have not submitted new evidence in support of their appeal and do not request an oral hearing. They ask the Refugee Appeal Division (RAD) to set aside the determination of the RPD and substitute a decision that they are Convention refugees or persons in need of protection. DETERMINATION [2] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are Convention refugees. This appeal is allowed. Background [3] The Appellants are both minors and had a court-appointed Designated Representative (DR) at the hearing. They alleged before the RPD that their mother and stepfather were murdered in their home by their biological father on XXXX XXXX, 2017 in the early hours of the morning. They were taken into custody by the Saint Lucia Division of Human Services and their biological father was charged with the murders. [4] Their great aunt was given temporary custody of the children in a court proceeding on XXXX XXXX, 2017. She applied for a Canadian visa on the Appellants' behalf and sent them to live with their aunt in Canada on XXXX XXXX, 2017. They made claims for refugee protection on April 26, 2017. They fear that their biological father will take them away. [5] The Appellants' claim for refugee protection was heard on November 22, 2017. In a decision dated December 22, 2017, the RPD rejected their claim finding that the Appellants do not face a serious possibility of persecution and that their removal to Saint Lucia will not subject them to a risk to life, to a risk of cruel and unusual treatment or punishment, or to a danger of torture. [6] The Appellants submit that the RPD made the following errors in coming to its conclusions: (a) the RPD erred by misrepresenting the evidence; (b) the RPD erred by ignoring material evidence; (c) the RPD erred by basing its decision on speculation. ANALYSIS Role of the RAD [7] For questions of fact, mixed fact and law, and law, the RAD has applied the standard of correctness, as per Huruglica.1 In assessing issues involving credibility of oral testimony, the RAD may apply the RAD modified standard of reasonableness in those situations where the RPD enjoys a meaningful advantage, as per the decision in X (Re), 2017 CanLII 33034 (CA IRB). ANALYSIS OF THE MERITS OF THE APPEAL Determinative Issues [8] The RAD finds that the determinative issues in this appeal are whether there is more than a mere possibility that the Appellants would be harmed by their biological father should they return to Saint Lucia, and whether there is a serious possibility that they would be subject to persecution in Saint Lucia because there is no one to look after them in that country. Misrepresentation of Evidence [9] The RPD found that the Appellants have family in Saint Lucia to care for them; the RPD specifically mentioned their great aunt, Ms. XXXX, their maternal aunt, XXXX XXXX, and their maternal uncle, XXXX XXXX. The RPD further found that, alternatively, there is a state agency to care for them. [10] The Appellants argue that this finding was contrary to the evidence on the record. They submit that the letter from their aunt, Ms. XXXX, confirms that the Division of Human Services did not know where to place them and that she was the only one qualified to take care of the children. The letter states that she is no longer willing to take the children because she fears risk to her and her family from the childrens' biological father. Her letter also confirms that other family members did not qualify to take care of the children. The Appellants submit that the report from the Division of Human Services also confirms that they could not find a fit and proper person to care for them other than Ms. XXXX. They submit that the letter from Ms. XXXX confirms that she was helped by the Division of Human Services in bringing the children to Canada, as their aunt, XXXX XXXX, was considered to be a person who could take care of them. [11] The Appellants argue that the RPD's conclusion was not accurate and not based on the evidence before it. They submit that the evidence before the RPD was that there was nowhere for the children to live in Saint Lucia. [12] The RAD has reviewed the record and finds that the Appellants' argument in regard to the children living with relatives in Saint Lucia has merit. The RAD notes from the evidence that letters have been submitted in support of the claim from Ms. XXXX, the Appellant's great aunt; XXXX XXXX, their aunt; and from XXXX XXXX, their uncle.2 Other than Ms. XXXX letter, there is no indication in the aunt's and uncle's letters that they are able to care for the children. The letter from the Saint Lucia Division of Human Services3 states that the extended family members were unable to care for the children in the long term, and that the aunt who resides in Toronto indicated her interest in caring for them as they had a close relationship. The RAD finds, on a balance probabilities, that there are no relatives willing to provide long-term care for the children in Saint Lucia. [13] The RAD has considered whether the children would be provided with care by social services in Saint Lucia. The RAD notes the documentary evidence indicating that child abuse remains a problem. The Department of Human Services and Family Affairs handles cases of sexual abuse, physical abuse, abandonment, and psychological abuse. The Human Services Division provides services to victims of child abuse, including a home for severely abused and neglected children, counseling, facilitating medical intervention, finding foster care, providing family support services, and supporting the child while working with the police and attending court.4 However, it is also noted that it is very difficult for abandoned, neglected and abused children to find alternative shelter. It is noted that sometimes informal arrangements are made with relatives or an "adopted" mother, and that sometimes teachers or community members find temporary arrangements for youth in need.5 [14] The RAD has considered that the Appellants' great aunt in Saint Lucia has not committed to long-term care for the children and that the other relatives were not deemed fit to provide care for them by the authorities. The RAD has additionally considered the documentary evidence indicating that it is very difficult for abandoned children to find shelter. The RAD finds that the RPD erred by speculating that the children would have someone to care for them should they return to Saint Lucia given that this conclusion is not supported by the personal and country condition documentary evidence. Ignoring Material Evidence [15] The RPD found that the Appellants had not provided evidence in the form of Saint Lucian law to suggest that their biological father would obtain custody or access to them. The RPD noted that the biological father is currently in prison on charges of murder and it is unlikely that a court would allow him to have custody or access to the children. The RPD additionally noted in its reasons that there was no history of the Appellants having spent time with their biological father, and that the associate Appellant had testified that he had not spent time with his father since he was six years old; had not spoken to him on the phone; and that he had never sent them presents or cards for Christmas or birthdays. Their aunt testified that he had never paid child support. The RPD found that their biological father had never taken an interest in the Appellants' lives and that it was purely hypothetical to suggest that they would either live or spend time with him if they were to return to Saint Lucia. [16] The Appellants argue that the RPD omitted crucial information when making its determination and did not take into consideration that their biological father was in prison for five years beginning when the Appellants were five and six years old. They submit that the associate Appellant testified that he had not spent time with his father since he was six years old. They argue that given that he was in jail, he would not have been able to call them or send Christmas and birthday presents. The Appellants submit that the conclusion that their father is not interested in them based on the lack of communication while he was in prison was an error. [17] The RAD has considered the record and notes that in the letter from the Appellants' uncle, XXXX XXXX, it is written that he spoke to the childrens' biological father after he was released from prison, and was told by him that he wanted to see his children. The RAD finds that this indicates that the biological father did have an interest in meeting with his children and that the RPD erred by finding that their father had no interest in them. Speculation [18] The RPD found that, based on the corroborative documents and the aunt's testimony, the Appellants were never threatened by their biological father and that he had never harmed them when he had a chance. The RPD further considered that the biological father had turned himself in, had been charged, and was denied bail, and, that the Appellants have family and alternatively, a state agency in Saint Lucia, to care for them if they were returned. The RPD concluded that the Appellants had not established that they would face a serious possibility of harm in Saint Lucia. [19] The Appellants argue that the RPD speculated when finding that their biological father had the chance to harm them and take them away, but did not. They submit that there is no evidence to show when their father went to their room on the night of the murder, or why he fled the murder scene after he realized the children had woken up. They argue that the RPD conclusion, that their father had a chance or opportunity to hurt them but did not, is based on several assumptions which cannot be made without obtaining more information about the events that occurred. They argue that it is speculation that he had a chance to hurt them as there is no evidence to show that he actually had a chance. [20] The RAD has reviewed the record and has listened to the recording of the hearing. The RAD finds that given the young age of the associate Appellant when he testified about the distressing event, it is difficult to put weight on his recollection of what happened. The RAD agrees that there is no evidence that the biological father directly threatened the children as he did their mother. However, it is clear from all of the evidence that the biological father is not a mentally stable man and that he is violent. There is evidence on the record that he was physically abusive towards their mother while they were together. The RAD notes that he had already been in prison for approximately seven years before the murder and that he had attempted to escape custody on at least one occasion. The RAD has considered that the great aunt in Saint Lucia, who had temporary custody of the children, wrote in her letter that she feared harm from the biological father should she keep the children permanently. The RAD finds, given the violent history of the biological father, that there is more than a mere possibility that he could harm the children. Although he is presently in custody, he has not been tried yet and so there is no certainty that he will be convicted and sentenced for the murder of the Appellants' mother. Summary [21] The RAD has considered the previously noted findings that there is no certainty regarding the Appellants' ability to live with family or in alternative state care; and that there is a serious possibility that their biological father may harm them. The RAD finds that there is more than a mere possibility that the Appellants would suffer persecution based on their social groups - family membership and abandoned children - should they return to Saint Lucia. CONCLUSION [22] The RAD has found that the Appellants face a serious possibility of persecution in Saint Lucia. The RAD therefore finds that the RPD's decision cannot be upheld. Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are Convention refugees. This appeal is allowed. (signed) "Linda Hart" Linda Hart July 23, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Exhibit RPD-1, RPD Record, Exhibit 8, pp. 161-168. 3 Ibid, pp. 173-174. 4 Exhibit RPD-1, RPD Record, Exhibit 4, National Documentation Package (NDP) for St. Lucia (31 March 2017), Item 2.1, United States. Department of State (3 March 2017). 5 Ibid, Item 5.3, Response to Information Request (RIR) LCA104228.E, Immigration and Refugee Board of Canada (9 November 2012). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB8-06604 TB8-06605