MB9-30242

RAD File No. / No de dossier de la SAR : MB9-30242 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 / entendu à Date of decision December 15, 2020 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal Réginal Victorin 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] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Haiti. She alleges that she was raped by strangers on XXXX XXXX, 2017, two days before she left for a three-week vacation in Montréal. She fears being raped again if she returns to her country. [2] On December 6, 2019, the Refugee Protection Division (RPD) rejected the appellant's refugee protection claim. The RPD was of the opinion that she had failed to establish that she would be attacked again if she returned to Haiti because the appellant did not obtain corroborating documents and it took her more than three months to claim refugee protection in Canada. The RPD also concluded that the appellant could return to Haiti since she has many siblings there. [3] The appellant is appealing the RPD's decision. She argues that the RPD did not analyze her refugee protection claim based on the appropriate legal test, but imposed a burden on the appellant that section 96 of the Immigration and Refugee Protection Act1 (IRPA) does not impose. She also argues that the RPD credibility finding was made in a perverse or capricious manner, that the RPD should have considered all of the evidence, and that it erred in considering Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution.2 [4] I am of the opinion that the determinative issues for the Refugee Appeal Division (RAD) are whether the RPD erred in the application of the test under section 96 and whether it erred in its assessment of the appellant's credibility and in its analysis of her prospective risk in Haiti. After conducting a full and independent examination of the evidence provided, I am of the opinion that the RPD's decision is erroneous. DETERMINATION OF THE APPEAL [5] The appeal is allowed. I am referring the matter before a differently constituted RPD panel. NEW EVIDENCE AND ORAL HEARING [6] Subsection 110(4) of the IRPA stipulates that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [7] The appellant submitted as new evidence a statement from her mother, XXXX XXXX XXXX, dated XXXX XXXX, 2019. [8] Although this statement is dated XXXX XXXX, 2019, namely after the RPD's decision rejecting the appellant's refugee protection claim, this statement recounts events that allegedly occurred even before the appellant left Haiti. Consequently, I am of the opinion that it does not meet the first requirement of subsection 110(4) of the IRPA. [9] The appellant did not explain that this document was not reasonably available to her. I note that it is a statement from her mother, with whom she is clearly in contact. It must also be noted that she was able to obtain her mother's statement just three weeks after the RPD rejected her refugee protection claim and after the RPD informed her that it would have been appropriate for her to provide it. I am therefore of the opinion that this statement does not meet the second requirement of subsection 110(4) of the IRPA. [10] The appellant explained on appeal that she did not file her mother's statement in evidence because she believed that her own testimony was the best evidence of the basis for her refugee protection claim and that she could not have predicted that the RPD would have preferred and required indirect evidence, while her testimony was direct evidence. I consider these explanations to be unsatisfactory for the following reasons. [11] Her mother's statement goes right to the very heart of her refugee protection claim, namely the rape against her in XXXX 2017. The appellant was questioned at her hearing, which was held on October 28, 2019, and she was told that it would have been appropriate for her to provide her mother's statement since the RPD had questioned her about it. However, the appellant did not submit it to the RPD before it rendered its decision on December 6, 2019, and she also did not ask the RPD for more time to submit it; this gave her ample time to submit it to the RPD before her refugee protection claim was rejected. The appellant was represented by an experienced legal counsel when her refugee protection claim was submitted. In these circumstances, I am of the opinion that the appellant could not have been unaware that she was responsible for providing the RPD with all the evidence necessary to establish the merits of her refugee protection claim, as noted in rule 11 of the Refugee Protection Division Rules.3 Page 1 of the Basis of Claim Form (BOC Form), which she completed and signed while represented by a legal counsel, indicates that: "You are responsible for obtaining and providing to the IRB any documents that may support your claim." Note that the role of the RAD is not to provide an opportunity to complete a deficient record before the RPD, but rather to allow errors of fact, law or mixed fact and law to be corrected.4 In light of the foregoing, I am of the opinion that the appellant failed to demonstrate that she could not have reasonably provided this document to the RPD before her refugee protection claim was rejected. The evidence submitted does not meet the third requirement of subsection 110(4) of the IRPA. [12] Since the statement from the appellant's mother does not meet any of the requirements of subsection 110(4), I am not required to analyze the credibility, relevance and newness of this letter as per the jurisprudential tests in Singh5 and Raza.6 This document is not new evidence. In the circumstances, there is no cause to hold an oral hearing under subsection 110(6) of the IRPA. ROLE OF THE REFUGEE APPEAL DIVISION [13] The RAD must apply the correctness standard of review in accordance with the Federal Court of Appeal decision in Huruglica.7 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.8 In this case, I am of the opinion that the RPD did not enjoy a particular advantage. Consequently, I will carry out my own analysis of the record, including listening to the recording of the hearing, in order to establish whether the RPD committed any errors, applying the correctness standard of review. ANALYSIS OF THE MERITS OF THE APPEAL Analysis of the refugee protection claim under section 96 of the Immigration and Refugee Protection Act [14] The appellant argued that the RPD erred in the application of the legal test under section 96 of the IRPA.9 She submitted that she did not have to demonstrate having been assaulted in the past to show that she would be in the future. She argued that the RPD assessed her claim, requiring evidence of the actual occurrence of a new rape in the future. In the appellant's opinion, the RPD seemed to require a higher standard of proof than what is recognized in case law about section 96 of the IRPA, since it is written at paragraph 9 of the RPD's decision that: [translation] "But she refers to section 96 and her counsel argues that she is part of a group of women likely to be attacked, but what the panel wished to know was whether the claimant would be personally likely to be attacked again, which she did not establish during her hearing, claiming only that she could be again." [15] The appellant noted that she had to establish her claims on a balance of probabilities, but that she did not have to prove that it is more likely than not that she would be persecuted. She believes that, in wanting to know if she would face another assault, the RPD required proof of certainty, which is neither the standard nor the burden set out in section 96 of the IRPA. [16] I agree that the language used by the RPD is ambiguous and does not show whether it applied the correct legal test to assess the appellant's refugee protection claim under section 96 of the IRPA. To avoid any ambiguity, it should have been written that the appellant had failed to demonstrate being raped, on a balance of probabilities, and that she had failed to demonstrate that there is a serious possibility that she would be persecuted if she returned to Haiti. I am of the opinion that the RPD did indeed err by not clearly setting out the legal test that it had applied in this case. [17] Still on the topic of this excerpt, the appellant alleged that the RPD seemed to require proof of a personal characteristic other than gender to justify a fear of persecution and which made her more likely to be raped than other women and that, in other words, gender-based fear did not seem sufficient to the RPD. I will come back to that later, but the case law states that, to analyze the refugee protection claim of a Haitian woman who alleges that she fears being persecuted because she is a woman, it is necessary to consider her personal profile. This paragraph of the RPD's decision suggests that the appellant was trying to imply that she would be part of a group of women likely to be attacked so that her claim would be analyzed under section 96. Case law has established, and it is specifically stated by the Supreme Court of Canada in Ward,10 that gender can provide the basis for a particular social group, and thus trigger an analysis under section 96, and that rape and other forms of sexual assault are crimes grounded in the status of women in society. What is more, the Federal Court jurisprudence in Dezameau11 and Josile12 states that the claim of a Haitian woman refugee claimant must be examined under section 96 of the IRPA because of her membership in a particular social group of Haitian women, and that gender-based violence is widespread in Haiti. i) Assessment of the appellant's credibility [18] Although not specifically written, the RPD's decision seems to imply that it did not believe the appellant's key allegation that she was raped by strangers in XXXX 2017. However, even if this is what can be inferred upon reading the decision, I am of the opinion that it would have been preferable for the RPD to draw a clear finding on the appellant's credibility and indicate whether or not she is a credible witness since credibility findings must be made in clear and unmistakable terms.13 [19] In this case, it would have been all the more important to be clear given that, as the appellant noted, the RPD's decision has a certain inconsistency. On the one hand, it states that it is interested in knowing whether the appellant would be attacked again, which she did not establish at the hearing, and on the other hand, this seems to suggest that it believed that the rape occurred in XXXX 2017. In other words, the RPD's decision suggests that it finds that the appellant's testimony is not credible with respect to the past rape, but when analyzing the prospective risk, the rape becomes an established fact. I am of the opinion that this inconsistency in the RPD's decision does not give a clear indication of the RPD's thoughts on the truthfulness of the allegations in support of the appellant's refugee protection claim. [20] While the past is no guarantee of the future and past persecution does not necessarily mean future persecution, the fact remains that I can, on appeal, assess the appellant's prospective risk in Haiti in connection with the alleged rape of XXXX 2017; I would need to review the appellant's testimony and question her on the alleged events. [21] Consequently, I am of the opinion that this is an error that I am unable to remedy by confirming or by setting aside its determination and substituting a determination that, in my opinion, should have been made without holding a new hearing, which I cannot do in the absence of new evidence under subsection 110(6). [22] Furthermore, the RPD criticized the appellant several times about the fact that she did not submit documents corroborating her allegations and about the fact that she had waited three months before claiming refugee protection in Canada, and seemed to draw negative inferences from these two factors. [23] As for the corroborating documents, the RPD specifically criticized the appellant for not submitting her mother's statement to confirm her alleged conversations with her mother about the assault when she returned to the house, for not submitting a medical certificate when she mentioned being in pain and was ailing, but not enough to board an airplane two days later for Canada. The RPD criticized her for not filing a complaint with the police, when her BOC Form suggests that a statement may have been made since she indicates that [translation] "the investigation is ongoing," and the fact that the never-ending investigation did not rule out that the appellant had made a statement to police, which would have given more weight to her assault. The RPD also criticized the appellant for not submitting a termination letter. [24] The appellant argued on appeal that this requirement for corroboration is not justified to support her allegations of rape since at no point in its decision did the RPD raise contradictions in her testimony, and yet the RPD required corroborating documents, which is erroneous. I am of the opinion that it is clear that where the RPD has valid reasons to doubt a refugee protection claimant's credibility, a failure to provide corroborating documentation is a proper consideration for the RPD if it does not accept, as being reasonable or credible, the claimant's explanation for failing to produce that evidence. Yet in this case, the RPD seems to doubt the appellant's credibility because she did not provide it. Consequently, I am of the opinion that the requirement for corroboration in these circumstances is erroneous. [25] All the more so since the other factor the RPD considered to draw a negative inference from the appellant's testimony comes down to the fact that she waited three months before claiming refugee protection in Canada. The appellant explained that the delay was because she was unaware that she could claim refugee protection. The RPD was of the opinion that since the appellant worked for the ministère des Haïtiens vivant à l'étranger [Ministry of Haitians Living Abroad], she should have known that she was able to make a refugee protection claim in Canada. In her memorandum of appeal, which is particularly detailed, the appellant submits several representations in this regard. It does not seem necessary to address them because, even though the RPD was justified in concluding that the appellant was late in making a claim, I am of the opinion that a delay of only three months is negligible. [26] In my view, the lack of corroborating documents, combined with the three-month delay in making a claim, is insufficient to make any findings on the appellant's credibility, and whether or not her allegations are to be believed. I am of the opinion that I cannot conclude on this matter on appeal without holding a hearing and questioning the appellant on the events central to her refugee protection claim, which I cannot do as there is no new evidence on the record. ii) Failure to consider Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution14 [27] At the very end of its decision, at paragraph 11, the RPD states that in its analysis, it considered the Chairperson's guideline on individuals fearing gender-related persecution, but that it does not apply in this case. The RPD did not explain why it came to this conclusion. It seems to me that, since this matter involves a refugee protection claimant who alleged being gang raped in Haiti, Guideline 4 does apply. [28] In light of all the foregoing, I conclude that the RPD committed errors that I am unable to remedy by confirming or by setting aside its determination and substituting a determination that, in my opinion, should have been made without holding a new hearing to review the evidence, including the appellant's testimony. Consequently, I must refer the matter to the RPD for re-determination taking into account Guideline 4. CONCLUSION [29] The appeal is allowed. I refer the matter to a differently constituted panel of the RPD for re-determination. (Signed) Love Saint-Fleur Me Love Saint-Fleur December 15, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (IRPA) (S.C. 2001, c. 27). 2 Immigration and Refugee Board of Canada (IRB). Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution. Guideline issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act. Ottawa, March 9, 1993, updated: November 1996 and maintained in effect by the Chairperson on June 28, 2002, pursuant to paragraph 159(1)(h) of the IRPA. 3 Refugee Protection Division Rules (SOR/2012-256). 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII). 6 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 7 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 8 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 9 IRPA (S.C. 2001, c. 27). 10 Canada (Attorney General) v. Ward, [1993] 2 SCR 689. 11 Dezameau, Elmancia v. M.C.I. (FC No. IMM-4396-09), Pinard, May 27, 2010, 2010 FC 559. 12 Josile v. Canada (FC No. IMM-3623-10), Martineau, January 17, 2011, 2011 FC 39. 13 Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228. 14 IRB. Chairperson's Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution. Guideline issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act. Ottawa, March 9, 1993, updated: November 1996 and maintained in effect by the Chairperson on June 28, 2002, pursuant to paragraph 159(1)(h) of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-30242 RAD.25.02 (January 2020) Disponible en français 4 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