MB5-01058

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. / No de dossier de la SAR : MB5-01058 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision September 2, 2015 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Chantal Ianniciello Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The appellant, XXXX XXXX XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim by determining that he is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) allow the appeal, set aside the RPD's determination and render a favourable decision. Alternatively, he is requesting that the matter be referred to the RPD for a hearing before a differently constituted panel. [3] The appellant did not submit new evidence on appeal in accordance with subsection 110(4) of the IRPA. He is not requesting that a hearing be held under paragraph 110(6) of the IRPA. [4] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [5] Pursuant to subsection 111(1) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [6] The appeal is dismissed. BACKGROUND [7] The appellant is a XXXX from Haiti. He arrived in Canada with a visitor visa on October 29, 2014, and claimed refugee protection on December 4, 2014. In the story annexed to his Basis of Claim Form (BOC Form), he states the following: [translation] The situation in Haiti has deteriorated since the earthquake. The crime rate is increasing, people don't have many financial options for survival and they are taking drastic measures to survive. Because of that poverty, there are more and more armed criminals, kidnappings and murders in order to steal possessions or demand a ransom. [8] He alleges that as he was leaving the church on XXXX XXXX, 2014, armed men called out to him and tried to force him into a car. He was able to get out of this predicament because his aggressors fled when they heard a police car siren. [9] He alleges that he went to the police station the next day to report the incident. The police officers told him to go home and tell them if he saw anyone suspicious. He told his family about his fear and, together, they decided it would be best if he left Haiti and came to Canada to claim refugee protection. Impugned decision [10] On February 20, 2015, the RPD rejected the refugee protection claim. Its reasons can be summarized as follows: 1. Since the alleged fear has no nexus to any of the five Convention grounds, the claim for refugee protection was reviewed under section 97 of the IRPA. 2. The claimant's credibility was undermined by inconsistencies in the evidence, including the fact that he failed to indicate in his BOC Form that after the attempted kidnapping he allegedly hid at a friend's home until he left the country. 3. The RPD noted that the appellant allegedly filed a complaint with the police; however, he did not submit any document establishing that fact and he did not follow up on the complaint. 4. The RPD also took into consideration his delay in leaving his country. The incident allegedly took place on XXXX XXXX, 2014, and he did not leave his country until October 29, 2014. 5. Considering the credibility issues, the RPD does not believe the claimant's allegations. Alternatively, the RPD concludes that even if it accepted that the attempted kidnapping had taken place, it was not established that, if he were to return, the claimant would face a risk that is different from the "generalized risk" faced by all the Haitian population. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's allegations [11] The appellant argues that the RPD erred in drawing a negative conclusion from the fact that he did not remember which day of the week the attempted kidnapping took place. His counsel argued that even though the appellant neglected to indicate in the documents that he had hidden at a friend's home, [translation] "this does not necessarily mean that the claimant in not credible."1 He notes that the RPD did not draw any conclusions about the fact that there was no copy of the complaint that he filed. With respect to his delay in leaving the country, the RPD did not take into consideration the appellant's testimony to the effect that he discussed his situation with his family.2 [12] Finally, the RPD committed an error when describing the risk he faces as a "generalized risk." Relying on Tab 14.1 of the national documentation package, the appellant submits that the RPD did not adequately assess the documentary evidence, which indicates that the diaspora is [translation] "a separate group that is more visible and more targeted by kidnappers and thieves."3 THE RAD'S ROLE AND FUNCTIONS [13] The appellant's counsel summarized the lines of Federal Court case law concerning the RAD's role when it reviews an RPD decision. According to counsel, the differences of opinion within the Court regarding the RAD's role are primarily [translation] "with respect to the deference that is owed to the RPD decision."4 He argues that [translation] "the RAD is a specialized (highly specialized) tribunal" that has the jurisdiction to hear de novo appeals and owes no particular deference to the RPD.5 [14] Counsel is asking the RAD to take into consideration the fact that the standard of palpable and overriding error is too onerous a standard, one that was developed in a different context from that of refugees. He is asking the RAD to consider the new context in which refugee protection claims are presented, in particular, the short period between the time when claimants arrive in Canada and the date of their hearing-which, in his opinion, [translation] "increases the potential for errors"6-as well as the significant impact the decision has on the life of the claimant. Counsel argues the following: [translation] ... The Refugee Appeal Division is the only safeguard in place for failed refugee protection claimants, and that must be taken into consideration. ...With the new legislative amendments, refugee protection claimants no longer have the right to a pre-removal risk assessment or a humanitarian application before they are deported from Canada. They have to wait one year after a negative decision is handed down from the refugee status division before they can begin that process and could therefore be deported before that time.7 [15] To summarize, counsel submits that the RAD must conduct an independent assessment of the refugee protection claimant's credibility. He adds that [translation] "despite the restrictions concerning the submission of new evidence...the Refugee Appeal Division has the jurisdiction to hear an appeal according to the rules of impugned decisions."8 [16] The statutory provisions precisely indicate the allowable grounds for appeal,9 as well as its "remedial powers." Parliament allows the RAD to confirm the determination, set it aside and substitute a determination that, in its opinion, should have been made, or refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.10 [17] The Federal Court, called upon to determine the appropriate type of review by the RAD of decisions rendered by the RPD, recognizes its "expertise" in refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals",11 and states that "[t]he idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."12 Although these opinions are shared by a number of judges, as noted by the appellant's counsel, the Federal Court is faced with two key lines of case law. [18] For the proponents of the first line of case law established by Justice Shore: [27] ...The RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. ...13 Justice Roy and Justice Leblanc also agree that an error must be "palpable and overriding to succeed on appeal."14 Justice Roy notes that appeals before the RAD are meant to be generous but adds that "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."15 Justice Roy also states that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)."16 [19] Justice Phelan proposes a different approach in Huruglica.17 According to Justice Phelan, "the RAD is required to conduct a hybrid appeal." [20] It must "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a 'Convention refugee' or a 'person in need of protection.' Where its assessment departs from that of the RPD, the RAD must substitute its own decision."18 [21] Justice Phelan, when writing about the deference that the RAD owes to findings of the RPD, states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative". Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states, "there is no reason for the RAD to defer to the RPD on this type of assessment." [22] I have reviewed the decisions rendered by the Court so far, and it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well-founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. [23] I do not agree with the appellant's arguments that an appeal before the RAD is a de novo appeal. The RAD holds a hearing only under the circumstances set out in subsection 110(6) of the IRPA, and when it assesses the evidence, it is limited to the testimony given in response to questions from another decision-maker. In that context, because the RPD is in an advantageous position compared with the RAD, it seems to me that the RAD may show a measure of deference when the credibility of the refugee protection claimant is central to the decision. Nevertheless, when findings of fact or of mixed law and fact are erroneous or are not supported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [24] In terms of errors of law, Justice Shore states that "the RAD must be able to correct any error of law".19 MERITS OF THE APPEAL [25] The RPD was correct to state that section 96 of the IRPA cannot be applied in this matter. There is insufficient evidence on record to establish that the appellant's fear is based on one of the five Convention grounds. [26] In Cius,20 the Federal Court states that perceived wealth is not a sufficient reason to conclude that "Haitian returnees" constitute a social group under section 96 of the IRPA. In Etienne,21 it was established that being rich or being perceived as being rich does not constitute a social group according to section 96 of the IRPA. Consequently, this refugee protection claim has been reviewed under section 97 of the IRPA. Credibility [27] The RPD found that the appellant's credibility was undermined by inconsistencies in the evidence, and the explanations he provided were found to be insufficient. Findings of credibility constitute questions of fact, for which the RPD's expertise is acknowledged because it has the advantage of seeing and hearing the refugee protection claimants and witnesses.22 I do not have that privilege in this appeal because the criteria set out in subsection 110(6) of the IRPA have not been met. [28] The first element that the RPD found to have undermined the appellant's credibility is the fact that he stated that he went to the church on Sunday and Tuesday evenings for religious services. Outside of those times, he went only when the need arose. [29] At the hearing, he stated that the evening he was kidnapped he had gone to church for mass. He stated that it was a Tuesday evening. The panel showed him a calendar, establishing that August 9, 2014, was a Saturday. To that, the appellant responded that he had been traumatized and that his aggressors had been armed. The panel found his explanation insufficient considering that that incident alone was the reason for his fear. [30] The appellant argues that the RPD erred in holding that fact against him. In his opinion, his explanation is logical and credible. He was traumatized during the incident and does not remember on which day of the week it took place. With all due respect, I cannot accept that argument. The appellant likely thought about the incident, which is the reason for his claim. In that context, it is odd that he is unable to indicate which day of the week XXXX XXXX, 2014, was. Even more important to me in this matter is the fact that he first stated he was at the church for mass (a religious ceremony) and when confronted with the fact that XXXX XXXX was neither Sunday nor Tuesday, he changed his testimony to state that it was actually a meeting with church members. That leads me to conclude that he did not establish, on a balance of probabilities, that he was at the church on the evening of XXXX XXXX, 2014. Consequently, he did not establish that someone had attempted to kidnap him. Omission [31] Next, the RPD noted that the appellant did not indicate in the story annexed to his BOC Form or in the completed documents that after the incident he took refuge at a friend's home until he left the country. The RPD asked for an explanation but was not satisfied. [32] The appellant argues that [translation] "that does not necessarily mean that the claimant is not credible."23 With respect, I am of the opinion that the RPD was justified in considering such an omission. Living in hiding at a friend's home for nearly three months is not a trivial fact. [33] In addition to those two points, there is his delay in leaving. The appellant argues that the RPD erred by not taking into account his explanations to the effect that [translation] "he had to spend a lot of time speaking with his loved ones so that they would accept what was happening."24 Having reviewed the evidence, I am unable to conclude that the RPD did not consider the refugee protection claimant's explanations. It refers to them specifically in paragraph 13 of the decision. I should also note that this element was not the only one the RPD considered. In this matter, there were many elements that led to the finding that the appellant lacks credibility. [34] In my opinion, since the appellant did not establish the facts on a balance of probabilities, the RPD could have concluded its analysis at that point. Generalized risk [35] However, alternatively, the RPD concluded that even if it had believed that someone had tried to kidnap the claimant, he did not establish that the risk he would face if he were to return is different from the "generalized risk" that the rest of the Haitian population is subject to because of the insecurity in Haiti. [36] The appellant argues that the RPD erred and that it did not take into consideration the documentary evidence, particularly Tab 14.1 of the national documentation package, which indicates that [translation] "the diaspora is a separate group that is more visible and more targeted by kidnappers and thieves."25 [37] With respect, I do not agree with the appellant's arguments to the effect that the RPD erred or failed to take into consideration the documentary evidence in its analysis of his refugee protection claim under section 97 of the IRPA. [38] For a claim to be allowed under paragraph 97(1)(b) of the IRPA, the claimant must establish that the personal risk they face is different from the "generalized risk" faced by all or part of the Haitian population. [39] In Jean,26 Justice Shore refers to Tab 14.1 of the National Documentation Package on Haiti and states the following about Haitian returnees who fear returning to the country after time abroad: ...the Haitian diaspora as a whole cannot be considered a [translation] "risk group" and that each case must be considered individually and within [translation] its own context. [40] Tab 14.1 of the National Documentation Package on Haiti27 indicates that the risks faced by those returning to Haiti depend on, among other things, "the neighbourhoods that they visit or reside in, and whether the neighbourhood is prone to violence or not." It also indicates that "the risk of criminal victimization is not limited to members of the diaspora, but is shared by everyone who appears to be wealthy and who attracts attention to themselves." In addition, it is not just the rich who fall victim to crime; according to other information in Tab 14.1, "the majority of victims of crime are poor, since wealthy citizens can afford private security services to offset their higher individual risk." [41] In Tanis28 and St-Hilaire,29 the Federal Court confirmed the importance of assessing the claimant's profile, political past and reasons for leaving Haiti. [42] At this point, I would be remiss if I did not mention the appellant's statements in his BOC Form. [translation] The situation in Haiti has deteriorated since the earthquake. The crime rate is increasing, people don't have many financial options for survival and they are taking drastic measures to survive. Because of that poverty, there are more and more armed criminals, kidnappings and murders in order to steal possessions or demand a ransom. [43] In this case, apart from the fact that he is perceived as having economic means because of his trips to Canada, the appellant did not establish that he has the type of profile that, if he were to return, would subject him to a risk that differs from that of other Haitians. [44] With respect to the argument that he would be at greater risk, and as the RPD noted in its decision, Justice Temblay-Lamer states the following in Prophète:30 "While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence." [45] In a country where violence is endemic, according to both the appellant's statements and the documentary evidence, the fear of being kidnapped is a risk that the entire population faces and, consequently, it is a "generalized risk." [46] In that context, having assessed all the evidence and taken into consideration the appellant's arguments, I am of the opinion that the RPD rendered the appropriate decision. The decision is not perverse or capricious, and it takes into account the case law. [47] To conclude, I note that the appellant's situation differs greatly from the situation that Justice de Montigny refers to in Martinez Pineda v. Canada (Minister of Citizenship and Immigration), 2007 FC 365. In Pineda, the refugee protection claimant was threatened a number of times by the Maras, who were trying to recruit him. However, in this case, the evidence demonstrates that the appellant's alleged situation on XXXX XXXX, 2014, is an isolated incident. As well, according to his testimony, neither his family nor the members of his church have encountered problems because of their connection to the appellant. CONCLUSION [48] For these reasons, the RAD confirms the determination of the RPD, namely that XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [49] The appeal is dismissed. Maria De Andrade Me Maria De Andrade September 2, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, page 18, para. 32. 2 Idem para. 36 to 39. 3 Appellant's memorandum, page 22. 4 Appellant's memorandum, page 15. 5 Idem. 6 Idem, page 16. 7 Appellant's memorandum, page 17. 8 Appellant's memorandum, page 15. 9 Subsection 110(1) of the Immigration and Refugee Protection Act (IRPA): "Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection." 10 Subsection 111(1) of the IRPA. 11 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 12 Idem. 13 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 14 Spasoja v. Canada (Minister of Citizenship and Immigration), Justice Roy, 2014 FC 913, Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), Justice Leblanc, 2014 FC 1236. 15 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 16 Idem. 17 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 18 Idem. 19 Supra, footnote 13. 20 Cius, Ligene v. M.C.I, (F.C., No. IMM-406-07), Beaudry, 2008 FC1. 21 Etienne, Jacques v. M.C.I. (F.C., No. IMM-2771-06), Shore, 2007 FC 64. 22 Allalou v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1084, para. 17, Sajad v. M.C.I., (Minister of Citizenship and Immigration), 2014 FC 1107, para. 20. 23 Supra, footnote 1. 24 Supra, footnote 2. 25 Appellant's memorandum, page 22. 26 Jean, Léonie Laurore v. M.C.I. (F.C., No. IMM-5860-09) 2010 FC 674. 27 Refugee Protection Division record, pages 36 to 43. 28 Tanis v. Canada (Citizenship and Immigration), (F.C., No. IMM-3125-09) Mainville, 2010 FC 420. 29 Saint-Hilaire v. Canada (Citizenship and Immigration), (F.C., No. IMM-3910-09), Mosley, 2010 FC 178. 30 Prophète, Ralph v. M.C.I. (F.C., No. IMM-3077-07), Tremblay-Lamer, March 12, 2008; 2008 FC 331, para. 23, confirmed by Prophète, Ralph v. M.C.I. (F.C.A., No. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-01058 2 RAD.25.02 (2014.09.11) Disponible en français