MB9-11978

RAD File No. / Nº de dossier de la SAR : MB9-11978 MB9-11979 / MB9-11980 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 13, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal François Jean Denis Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION OVERVIEW [1] This is the appeal filed by XXXX XXXX XXXX XXXX XXXX and their child, XXXX XXXX, citizens of Haiti, against a decision of the Refugee Protection Division (RPD) rendered on May 21, 2019, rejecting their refugee protection claim and excluding the appellants from the application of the Act under Article 1E of the Convention.1 [2] The appellants' story is quite simple. The account presented concerns the female appellant. The female appellant claims that she was attacked in her home on August 6, 2014, by three men while her husband was in Brazil. She states that this incident was reported to the police but that she continued to receive telephone threats to leave the area. She also states that she fears armed criminals on the streets of Haiti. She left for Brazil in XXXX 2015, but did not claim asylum because of a lack of information. In XXXX 2016, the appellants went to the United States. The male appellant had been in Brazil since 2011. They arrived in Canada in XXXX 2017 and claimed the protection of our government. [3] The appellants are asking the Refugee Appeal Division (RAD) [translation] "to allow this appeal, set aside the RPD determination and substitute a determination that, in its opinion, should have been made, and refer the matter to the RPD for re-determination of the refugee protection file." [4] The memorandum also states as follows: Set aside the RPD determination, thereby allowing the refugee protection claim. This would be doing justice to whom it is due. Hold a hearing to determine that the appellants are credible and that there are no inconsistencies or implausibilities between their testimony and the evidence on the record. [5] The appellants are not asking to submit new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA); however, they are asking that a hearing be held under subsection 110(6) of the IRPA, as indicated above. [6] The RPD rejected their refugee protection claim because it concluded that the appellants were excluded from the protection of the Convention. [7] On appeal, the appellants are submitting the following arguments: 1. The first arguments concern the permanent resident status in Brazil, which is no longer valid because of a two-year absence from Brazilian territory, discrimination against Haitians in that country and the fact that the loss of residency is involuntary. The latter were forced to leave the country in order to survive; 2. If it were to exclude the appellants, Canada would breach its international obligations; and 3. The RPD was overly vigilant. The omission of the identity of the agent of persecution in the Basis of Claim Form (BOC Form) stems from the appellants' lack of education and from the fact that they were afraid of the consequences; and they did not think it was important to mention the May 2011 attack. [8] The Minister's representative did not intervene on appeal. [9] The RAD would like to point out that, in weighing the evidence in this case, it considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. (November 1996). DETERMINATION [10] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, that XXXX XXXX XXXX XXXX XXXX and their child, XXXX XXXX are neither "Convention refugees" nor "persons in need of protection" and that they are excluded from the application of Article 1E of the Convention. HEARING BEFORE THE REFUGEE APPEAL DIVISION [11] The appellants are asking the RAD to hold a hearing under subsection 110(6) of the IRPA. Subsection 110(6) of the IRPA stipulates that the RAD may hold a hearing if, in its opinion, there is new evidence that is admissible and meets the three conditions listed.2 In this case, I am of the opinion that there is no cause to hold a hearing since no new evidence has been submitted to the RAD and accepted. [12] For these reasons, the request to hold a hearing before the RAD is denied. ANALYSIS [13] Having reviewed all the testimonial and documentary evidence on the record, the RAD comes to the same conclusion as the RPD, namely, that the appellants are excluded from the application of the Act. [14] The appellants are of the opinion that the RPD erred and that it failed to adequately assess their credibility and that the impact is such that the appellants would not be persecuted in their country. [15] The very essence of this case lies in the appellants' credibility. [16] After listening to the recording, I must point out that the atmosphere during this hearing was polite, that the member addressed the right issues in a cordial tone, was calm toward the appellants, and that the appellants responded directly, with their own words and explanations. There is mention, according to their representative in the memorandum, that the appellants lack education. They do not mention this in their written account. The attempted explanation provided in the memorandum does not make sense. They express themselves correctly using simple words, but they understood the questions of the member and their first counsel, and they answered the first panel's questions. This attempt to evade or shrug off certain omissions cannot stand in the circumstances. [17] The first matter addressed in the memorandum relates to the appellants' status in Brazil. They allege that their status was no longer valid because of a two-year absence from the country; as for the female appellant, she does not have permanent resident status in Brazil; the discrimination against people of Haitian origin in Brazil; and finally, the loss of residency is involuntary because they were forced to leave Brazil in order to survive. [18] The RPD concluded that, at that time of the hearing, the male appellant had lost his permanent resident status in Brazil. This loss is considered voluntary because he chose to leave Brazil voluntarily. As for the female appellants, they do not have permanent residence in Brazil even though their names are on the list of Haitian nationals who were given the opportunity to apply for permanent residence. She is aware of this important offer from the Brazilian government. She did not try to obtain permanent residence because she allegedly fears facing persecution and discrimination. Clearly, both female appellants had the opportunity to apply for permanent residence but did not opt to do so. Like the male appellant, they failed to apply for this status that was offered of their own accord. [19] The RPD considered the decision in Zeng3 and analyzed the loss of status and the risk in Brazil, the possibility of returning to Brazil and the risk in the country of origin according to the responses provided to the first panel; it concluded that they could not return to Brazil, and it was of the opinion that the allegations of fear in Haiti were not credible owing to the numerous extremely significant omissions and documents that undermine their refugee protection claims. [20] In Zeng, the panel addresses various matters on which the RAD must decide. The first is the reason for the loss of status. Was it voluntary or involuntary? In this case, the fact is that the appellants left Brazil voluntarily. The appellants' fear in the third country is extremely tenuous. The appellants allege that Haitians in general are discriminated against in Brazil. They testified that they had trouble finding jobs. They heard that Haitians had apparently been attacked. However, their situation is different because they were never victims of retaliation in Brazil. They did not establish a prospective risk in the third country. [21] Consequently, the RAD is of the opinion that the first points raised in the memorandum are moot. On reading these points and the explanations provided, it is clear that the appellants disagree with the RPD's conclusions on the matter of exclusion under Article 1E in Brazil. The RAD's reading leads to the same conclusions as the RPD's. [22] On this matter, the RAD is of the opinion that the RPD did not err. [23] Another point raised in the memorandum is that the RPD was [translation] "overly vigilant" in its analysis of the explanations and the statements about the events experienced in Haiti. The appellants state that they did not include the agent of persecution in the written account in the BOC Form because they were afraid of the consequences from their aunt if she found out that she was mentioned in the written account submitted. They also add that they did not think it was important to mention the May 2011 attack in the written account. [24] The RPD aptly and accurately states as follows, at paragraph 30 of its decision: [translation] The panel examined the claimants' alleged risk in Haiti and is of the opinion that their allegations are not credible. The most significant credibility issues are described below. [25] Asked to indicate when her problems started, the female appellant responded August 2014. It was only when the member pressed the issue that she testified May 2011. Those people were looking for legal documents in the house. On this occasion, they put their gun to the male appellant's ear. In 2014, three armed men went to the house looking for documents. The female appellant testified that these individuals sexually assaulted her. Afterwards, she went to the hospital, and the justice of the peace went to the house to look into the situation. Of these two situations, the event of 2011 is not mentioned in the written account, and in terms of the sexual assault that is mentioned in the written account, there is no mention of the three assailants having been sent by one of her aunts, XXXX, to find the documents. [26] The answers provided regarding these omissions are to the effect that they did not have the time to write down all the details and that they were instructed not to include this incident in the information form. As regards the failure to mention in the written account the fear of the aunt named XXXX, the female appellant responded that she did not want her aunt to find out about this. She also added that if she mentioned her aunt's name, she would risk being killed and that her aunt would use spirits that would chase her as soon as she got off the airplane and that immigration would be informed of the situation. She continued to not want to name her so that she (the aunt) would not find out; she added that she is an evil woman, as she put it, and that she wanted to get rid of them. She went on to testify that she knew that it was the aunt who had sent her lackeys to find the property documents. In this particular case, major omissions have been noted. First is the name of the aunt, who is the main character in this drama, and the fact that her problems relate to a property dispute with her aunt, who is demanding her sister's house, which was allegedly left to the female appellant. In addition, the explanations provided to avoid stating who is the source of their problems and the cause of this dispute are rather surprising. I attach no credibility to this portion of the testimony. [27] Another threat, a telephone threat received in March 2019, is not included in the written account. Asked to explain this omission, the female appellant stated that she had not found an interpreter to amend the written account. At the start of the hearing, the appellants stated that their BOC Form was accurate, true and up to date. Confronted with these numerous omissions from the written account, the latter simply stated that all that was missing was aunt XXXX name. Clearly, there was much more missing from the written account submitted than just the aunt's first name. These omissions annihilate the existence of the appellants' subjective fear. [28] In terms of the documents submitted, the most relevant document in the case file was missing. Neither the RPD nor the RAD had the opportunity to review an agreement of property divestiture to the female appellant. Considering that the appellants indicate that this document exists because some people are clearly very interested in it, it would have been open and beneficial to them to have filed it and for the panel to review this document that lies at the very root of this family dispute. [29] In addition, the report from the justice of the peace contains two clear errors-the date the event allegedly took place, and the year of Haitian independence does not correspond to the date of the event provided in this text. For any explanation, the appellants testified that it was the writer who had made these mistakes. It would have been easy, in filing the text to point out these errors to the member before the member confronted the appellants about their own evidence. This too greatly undermines their credibility. [30] Like the RPD, the RAD must find, after listening carefully to the recording and the documents submitted, that the appellants are not credible. In addition, the RAD is of the opinion that they have not established that they would face a serious possibility of persecution or that, on a balance of probabilities, they would be subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment if they returned to Haiti or to Brazil. [31] Consequently, the RAD finds that the RPD did not err. [32] For the reasons expressed in this decision, the RAD finds that the RPD rendered the correct decision. REMEDY [33] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX and their childXXXX XXXX XXXX, are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA and that they are excluded from the application of the Convention under Article 1E. [34] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin January 13, 2020 IRB translation Original language: French 1 Article 1E of the Convention; section 98 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 M.C.I. v. Singh, 2016 FCA 96, paragraph 51. 3 M.C.I. v. Zeng, Guanqiu (F.C.A., No. A-275-09), Noël, Layden-Stevenson, Stratas, May 10, 2010, 2010 FCA 118. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / Nº de dossier de la SAR : MB9-11978 MB9-11979 / MB9-11980 RAD File No. / Nº de dossier de la SAR : MB9-11978 MB9-11979 / MB9-11980 RAD.25.02 (April 4, 2019) Disponible en français 8 RAD.25.02 (April 4, 2019) Disponible en français 7 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 4, 2019) Disponible en français