MB9-11461

RAD File / Dossier de la SAR : MB9-11461 MB9-11462 / MB9-11463 / MB9-11464 MB9-11465 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 23, 2019 Date de la décision Panel Philippe Rabot Tribunal Counsel for the persons who are the subject of the appeal Sandra Palmieri Conseil des personnes en cause Designated representative XXXX XXXX Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are five appeals from members of the same family. XXXX XXXX XXXX XXXX XXXX and his spouse, XXXX XXXX XXXX XXXX XXXX are citizens of Haiti. Their three children, XXXX XXXX XXXX, XXXX XXXX XXXX, and XXXX XXXX XXXX are citizens of the United States. XXXX alleges that he could be harmed if he returns to Haiti because he witnessed a murder in XXXX 2008, stemming from a family dispute. XXXX claims her cousin would kill her if she returned to Haiti. She alleges that he had beaten her so badly in XXXX 2008 that she was hospitalized for 20 days. The Refugee Protection Division (RPD) found that XXXX was not credible about events that transpired before he left Haiti. The RPD also found that XXXX was not credible and had not established that her cousin represented an ongoing threat, particularly as she did not provide a medical certificate to establish that she had been hospitalized after being beaten by him, nor did she submit the police report which she alleged to have been made in 2017 over the death of her brother, which she attributed to her cousin. On appeal, the Appellants contend that the RPD erred in its assessment of the evidence. They argue that the RPD should have accepted their testimony as being truthful and not required corroborating evidence. [2] As 11 years have now passed since the events which led to the adult Appellants leaving Haiti, it is unreasonable to merely assume that the risk which they face remains the same that it was then. It was incumbent upon the Appellants to provide reliable evidence of an ongoing threat, rather than speculate as to what might happen. As for the children, there is no evidence that they would face any risk of harm if they returned to the United States. The appeals are therefore dismissed. BACKGROUND [3] On XXXX XXXX, 2008, XXXX uncle was murdered by several individuals acting on behalf of another one of XXXX uncles. XXXX witnessed the murder but was able to escape. The assassins found him two days later and they tried to kill him. He fled to the United States where he was granted Temporary Protection Status (TPS). That is where he met and married XXXX and where their children were born. They lived in the United States until they came to Canada in 2017. [4] XXXX allegation was that she was badly beaten by her cousin on XXXX XXXX, 2008, because he did not like the man she was dating at the time and he discovered that she was pregnant. Her injuries were severe enough that she had to be hospitalized for 20 days. She filed a complaint with the police. However, the police was not able to find her cousin. XXXX went to the United States in XXXX 2008. She claimed that she learned in XXXX 2015 that her cousin had killed her brother but was never arrested. She also claimed that another brother died from poisoning in XXXX 2018 after returning to Haiti from the United States. Lastly, XXXX mother had learned from several friends that her cousin was looking for her and was still intent on killing her. [5] In its written decision1, the RPD rejected the Appellants' argument that a risk associated with having lived abroad could form the basis of a refugee claim under section 96 of the Immigration and Refugee Protection Act (the Act). The RPD did acknowledge, however, that it had to consider whether XXXX profile as a woman would place her at a serious risk of being persecuted. It found that this was not the case. [6] XXXX claim to be a person in need of protection was rejected. The RPD found that he was not credible. It identified several contradictions between his oral testimony and the written narrative in his Basis of Claim form (BOC)2 and commented that a medical report concerning the nature of the injuries he sustained in the XXXX 2008 attack differed from what he alleged. [7] XXXX claim to be a person in need of protection was also rejected. The RPD found that she did not discharge her burden of evidence because there was a lack of documentary evidence in support of her allegations and she had not made reasonable efforts to obtain them. Specifically, she did not provide a death certificate for her brother, nor a medical certificate to confirm that she had been hospitalized for 20 days in XXXX 2008. Therefore, the RPD drew a negative inference about XXXX credibility from her failure to provide supporting documentation. [8] As for the three children, the RPD rejected the Appellants' argument that it should consider the possibility that they would be separated from their parents if they returned to the United States. [9] In their appeal3, the Appellants submit that it was an error for the RPD to draw a negative inference about their credibility due to the lack of supporting documentation. It is also argued that the RPD erred in failing to consider the best interests of the children, as this is a requirement of the United Nations Convention on the Rights of the Child (CRC). In support of this argument, the Appellants rely on the Supreme Court of Canada's decisions in Baker4 and Kanthasamy5. [10] The Appellants indicated that they had new evidence to present in support of their appeals and requested a hearing. However, no new evidence was submitted. As a result, the request for a hearing cannot be granted. Subsection 110(6) of the Act states that the Refugee Appeal Division (RAD) can only hold a hearing if there is new evidence to be considered. DETERMINATIVE ISSUES [11] In the case of the two adult Appellants, the determinative issue is whether the evidence establishes, on a balance of probabilities, that they still face an ongoing threat to their lives or would experience cruel and unusual treatment if they returned to Haiti, due to events that took place 11 years ago. [12] As for the three minor children, the determinative issue is whether the possibility that they would be separated from their parents if they returned to the United States is a relevant consideration. SCOPE OF THE APPEALS [13] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.6 The exception to this rule is that the RAD may apply a deferential standard in some circumstances. 7 I have conducted my own independent assessment of all of the evidence in this case, including the transcript of the RPD hearing. I have applied a correctness standard in this case. ANALYSIS OF THE APPEALS ON THE MERITS The prospective risk faced by the adult Appellants [14] Insofar as concerns the Appellants' contention that they are refugees within the meaning of section 96 of the Act, I note that they have not repeated the same arguments on appeal. For my part, I am satisfied that the RPD has correctly analyzed this issue at paragraphs 18 to 20 of its decision. [15] Turning to the issue of whether the Appellants are persons in need of protection as defined by section 97, I agree with the RPD's finding that the Appellants' evidence as to the events that transpired in 2008 is not sufficient, in and of itself, to demonstrate, on a balance of probabilities, that, 11 years later, there exists a prospective risk to their lives or a serious possibility of being subjected to torture or cruel and unusual punishment or treatment. I also agree that the Appellants' description of more recent events fails to establish, on a balance of probabilities, that they are still being pursued by the same relatives who attacked them in 2008. [16] XXXX maintains that his uncle was responsible for his brother's death in XXXX 2018. However, he failed to explain why he had come to that conclusion or why this would be relevant to an assessment of the risk that he himself is likely to face if he returned to Haiti. [17] As for XXXX, whether or not her cousin was responsible for her brothers' deaths in 2015 and 2018 is irrelevant for the purpose of establishing whether he still represents a threat to her. Furthermore, no weight can be ascribed to her statement that she had been informed by her mother that her cousin still wanted to kill her. This is third-hand information whose reliability cannot be determined. The best interests of the children [18] In Gomez8, the Federal Court stated that the best interest of the child cannot be taken into consideration in assessing an asylum claim, because refugee protection is designed to be surrogate protection. A well-founded fear of persecution must be presented in respect of the country of nationality. Hence, while I recognize that the three children might be separated from their parents in the event that they are returned to the United States and may have to be placed into foster care, these are not relevant considerations. I agree with the following comments by RAD member Maria De Andrade in X (Re), 2017 CanLII 142905: Did the RPD err by failing to apply the CRC? [42] Another argument put forward by the appellant is that the CRC, particularly Articles 3, 7 and 9, states that a child should not be separated from his parents and that the best interests of the child must be taken into account in the analysis of the refugee protection claim. Specifically, the argument is that Canada's removal of the appellant to the United States would be a breach of the CRC because he would be separated from his mother. Moreover, by sending him back to the United States, the IRB and Canada would not be taking into account the best interests of the child. It is also submitted that Canada should grant him refugee protection or risk contravening its international and constitutional obligations. [43] First, it should be noted that the IRPA does not give the RPD or the RAD the authority to make decisions based on humanitarian and compassionate considerations. Nor is the task of the IRB to determine whether it is in the best interests of the children to stay in Canada or return to the United States. The role of the RPD, and of the RAD on appeal, is to determine whether there is a serious possibility of persecution for the refugee protection claimant or whether, on a balance of probabilities, he would be subject to a risk of cruel and unusual treatment or punishment or to a danger of torture if he were to return to his country of citizenship. [44] I am also of the opinion that the RAD is not the appropriate forum to decide whether, if the appellant were removed to the United States, Canada would be in breach of its international obligations regarding the rights of the child. Moreover, this argument that Canada is in breach of its international obligations by separating the child from his mother seems premature to me, since the appellant has not established, on a balance of probabilities, that he will be returned to the United States in the very near and foreseeable future. Nor has it been established that, if he were to return to the United States, he would be separated from his mother. Refugee protection should be given to those who satisfy the requirements established by the IRPA. [19] Both the Baker and Kanthasamy decisions dealt specifically with the issue of the Minister's authority to grant relief on humanitarian and compassionate grounds, pursuant to subsection 25(1) of the Act, which specifically mentions the requirement to take into consideration the best interest of any child involved. These decisions have no bearing on how the RPD and the RAD are to assess asylum applications under section 96 and 97 of the Act. CONCLUSION [20] The adult Appellants have provided insufficient evidence that they face an ongoing risk to their lives or a threat of cruel and unusual punishment if they are returned to Haiti, 11 years after the events which allegedly led them to flee that country. Furthermore, it has not been established that their children face a serious risk of persecution if returned to the United States. [21] For these reasons, all five appeals are dismissed. (signed) "Philippe Rabot" Philippe Rabot December 23, 2019 Date 1 RPD-1, RPD record, pages 23 to 39. 2 Ibid, pages 42 and 43. 3 P-2, Appellants' record, Appellants' Memorandum, pages 22 to 30. 4 Baker v. Canada (Citizenship and Immigration), [1999] 2 SCR 817. 5 Kanthasamy v. Canada (Citizenship and Immigration), [2015] 3 SCR 909. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 Gomez v. Canada (Citizenship and Immigration), 2010 FC 237. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-11461 MB9-11462 / MB9-11463 / MB9-11464 MB9-11465 RAD.25.02 (April 04, 2019) Disponible en français 7 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 (April 04, 2019) Disponible en français