MB8-04523

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 : MB8-04523 MB8-04524 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXXXXXXXXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision October 30, 2018 Date de la décision Panel Roxane Cyr Tribunal Counsel for the appellant(s) Me Luciano Mascaro Conseil(s) du (de la/des) Appelant(e)(s) Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX and her son, XXXX XXXX XXXX, citizens of Haiti, are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim on January 22, 2018. [2] The appellants are not submitting any new evidence or requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under subsection 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the negative determination for XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, and refers their files to the RPD for re-determination. ALLEGATIONS [4] The female appellant and her son, the male appellant, fear her husband, the father of the male appellant. [5] The female appellant got married in 1995 and has been a victim of her husband's abuse since 2001. [6] In 2005, a fire destroyed her business (the female appellant was a XXXX). [7] The female appellant borrowed XXXX XXXX XXXX XXXX from a lender named XXXX, who she had heard was lending money. She repaid exorbitant amounts of interest for two years, but not the principal. [8] Then, she traveled to the United States in 2005 and returned home. She had an agreement with a person who was to take over her business and pay the amounts owed to XXXX. However, this person did not repay anything. [9] The female appellant owes XXXX this money, and she and her son fear reprisals from that person because the debt has not been repaid. [10] In 2006, the female appellant cut off all contact with her husband. [11] The female appellant traveled to the United States again in 2007. She returned home because she had heard that her husband was barging into the house, looking for her, and when he did not find her, he beat their son, the male appellant, and his niece. [12] Once back home, she and her son were threatened by her husband and by XXXX, who wanted to collect the money owed. [13] The female appellant went to the United States once more in XXXX 2007. She obtained Temporary Protected Status (TPS) in 2010. [14] Her son left Haiti for the United States in XXXX 2009. [15] Both of them arrived in Canada in XXXX 2017 and claimed refugee protection. RPD DECISION [16] The RPD found that the female appellant was not credible with respect to her fear of her husband or her fear related to XXXX. XXXX XXXX XXXX [17] The husband: * The RPD found a contradiction between the female appellant's testimony and her Basis of Claim Form (BOC Form): in the latter, she states that, in 2007, she went to hide from her husband at her brother's home in XXXX XXXX with her son because her husband would not dare to look for her there. However, she testified that she could not hide at any of her brothers' homes in XXXX XXXX because he would know and would go find her there; * The RPD found that the female appellant provided an inconsistent testimony with respect to the reasons why her husband would still be after her more than 10 years later. The RPD drew a negative inference from it with respect to credibility. [18] Fear of XXXX: * The RPD did not believe that the female appellant borrowed money from XXXX because her testimony lacked spontaneity during her responses regarding how she obtained this money, why she had to repay such high interest amounts and why this woman would still go after her 10 years later, even though she no longer had any contact with her; * The RPD drew a negative inference from the fact that the female appellant did not seek asylum when she arrived in the United States in 2007 and that she also travelled there more than once between 2005 and 2007. Moreover, she did not have any status for three years until she obtained TPS in 2010; * Given that the RPD did not believe the female appellant's story, it did not give any probative value to the letter from the niece, XXXX XXXX (see page 162, RPD record). XXXX XXXX XXXX * The male appellant contradicted himself with respect to his father: first, he testified before the RPD that he had not been abused by him, and then he stated that his father had been abusive to him when he was a child. The RPD found this to be inconsistent and lacking in spontaneity. * The RPD considered the passage of time because the male appellant is an adult now and his father is 62 years old, that he has had no contact with him since 2009, and that he gave vague and contradictory testimony with respect to the abuse that he allegedly suffered from his father. It found that he was not credible with respect to his fear of his father. * The RPD also found that the male appellant did not provide credible testimony with respect to his fear of XXXX: He does not know her and does know if she is still alive. Time has passed since this money was borrowed, and the fact that he is now an adult means that the male appellant failed to establish his fear of this person. MEMORANDUM [19] The appellants, in turn, submit the following arguments in support of their memorandum. 1 - The RPD erred by rejecting the female appellant's explanations with respect to the first contradiction raised: the female appellant only spent a very brief period at the home of her brother, XXXX. Moreover, even if her husband does not have any contact with the female appellant's brothers, it does not mean, however, that he has no contact with other people. Furthermore, he threatened the appellants. 2 - Even if the female appellant lived at XXXX home, she would still go out. She cannot be asked to spend her life housebound. The RPD took the female appellant's BOC Form too literally. 3 - Revenge does not diminish with time. The RPD erred by considering the passage of time as a determinative factor with respect to prospective fear. Regardless of how she would return to Haiti, her husband would eventually find out and be able to find her because everyone would know. 4 - The RPD erred by finding that the female appellant's testimony was not credible with respect to her loan from XXXX: it is not because the female appellant was asked the question several times that she failed to provide credible answers. It was a lack of comprehension. 5 - Ten years later, there is still a risk that she will suffer reprisals (mistreatment) from XXXX. The passage of time does not change that. The RPD's finding is erroneous in this regard. 6 - The RPD erred by finding that the male appellant was not credible with regard to the alleged abuse by his father. It misinterpreted the male appellant's testimony: he never stated that his father had not been abusive to him. In addition, just because there is no physical abuse, it does not mean that a victim cannot be abused. 7 - Simply because the male appellant has never seen XXXX does not mean that he is not at risk: she threatened him through his mother. THE RAD'S ROLE [20] The RAD is an appeal tribunal for RPD decisions. [21] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review to be applied by the RAD, that is, the correctness standard. [22] The Federal Court of Appeal determined in Huruglica (2016 FCA 93, para. 70), that the RPD, having heard the testimony, may have an advantage with respect to assessing it. [23] A recent decision by a three-member RAD panel1 with respect to deference concluded that: "Where the RPD enjoys a meaningful advantage in making a particular finding, the RAD may assess that finding using a standard of reasonableness, modified to apply to the RAD context."2 [24] Where the RAD finds that deference is warranted, it is obligated to explain how the RPD enjoyed a meaningful advantage with respect to the finding in question.3 [25] The RAD will consider the refugee determination on a standard of correctness, even where it has deferred to some or all of the findings upon which that determination is based.4 [26] The RAD will conduct its own analysis. The RAD will consider all the evidence, including the testimony. It will determine whether the RPD's decision contains errors of fact, of law or of mixed fact and law, and whether they are determinative to the outcome of the case such that the decision cannot stand. [27] In light of the Federal Court of Appeal's decision in Huruglica and the decision by the three-member RAD panel, I will apply the standard of correctness. However, where I am of the opinion that the RPD has a meaningful advantage in making a finding regarding the credibility of oral evidence, I will apply the standard of reasonableness, modified to apply to the RAD context. ANALYSIS [28] The RAD has reviewed all the evidence, including the recording of the hearing before the RPD. [29] The RPD relied on two points to find that the female appellant was not credible with respect to her fear of her ex-husband. [30] The first point concerns what the RPD found to be a significant contradiction. The RPD found a contradiction between the fact that the female appellant writes in her BOC Form that she went to hide at a brother's home with her son (in XXXX XXXX) after having been threatened because the husband would not dare go there and get her and the fact that she stated that she could not go live in XXXX XXXX (prospectively) because her husband would eventually find out given that everyone knows one another. In the RAD's opinion, it is not an obvious contradiction. [31] At paragraph 17 of its decision, the RPD writes that the female appellant stated that her husband would go and get her at her brother's home if she were to hide there and that this directly contradicts her BOC Form. However, in fact, that is not quite what the female appellant testified. The RPD asked her if she could go live in XXXX XXXX with her brothers. Her response was that it would be known because everyone talks to each other, and her husband would eventually find out. [32] In itself, that is not a contradiction. She can go live with her brother, and her husband may know that she is there. This point should have been further explored to make a finding that the female appellant, because of this contradiction, was not credible. [33] The RPD erred. [34] The second point that the RPD relied on is that the female appellant, who still alleges that she fears her husband, provided inconsistent explanations as to the reasons why, 10 years later, he could still hurt her. Neither she nor any of her family members have had any contact with him since that date, and her son is an adult now. The RPD, considering these various elements and the female appellant's testimony that was found to be [translation] "inconsistent," drew a negative inference with respect her credibility. The RAD is not of the opinion that the RPD applied correct reasoning. [35] The RPD relied on the female appellant's so-called inconsistent response to find that she was not credible with respect to her fear if she were to return to her country 10 years later. What more could the female appellant have stated? She testified that she was still afraid of him 10 years later and that from her point of view, considering the social fabric in Haiti, he would eventually find out where she was and would go look for her and that time had not changed anything. [36] This response from someone who alleges that she fears her husband who mistreated her and threatened to kill her is consistent. It is a subjective fear. [37] The RPD could not make a finding with respect to the female appellant's credibility by relying on the testimony's lack of consistency and by being of the opinion that her answers that she is still afraid, even 10 years later, were not. [38] This reasoning is faulty. In her mind, he still wants to go after her 10 years later; she feels that way, and it is called a subjective fear. [39] The RPD erred. [40] However, the review of prospective fear is important, specifically, in terms of the passage of time, which applies to this case. [41] The alleged incidents occurred until 2007. It is 2018 now. Nothing in the evidence indicates that her husband has tried to take any steps to find the female appellant, threaten her or even inquire about her since 2007. In this respect, the letter from the female appellant's niece, XXXX XXXX, who is still in the country, does not indicate anything in particular since the appellants left the country. [42] The RAD finds that the female appellant failed to establish that there is more than a mere possibility that she or her son would, if they were to return to their country, suffer persecution at the hands of her husband again. [43] The RAD considers the fact that the female appellant is still married to this man. However, it must be noted that the agent of persecution's profile is that of someone who has been totally inactive for at least 10 years and that no one has heard from him since then. [44] In light of these facts and the lack of objective evidence that can support a subjective fear, the RAD finds that both the female appellant and her son, the male appellant, failed to establish a prospective fear in support of their fear with respect to Haiti. The fear of a money lender, XXXX [45] The RPD drew a negative inference from the fact that the female appellant gave testimony that lacked spontaneity and that was laboured with respect to the loan of XXXX XXXX XXXX XXXX XXXX and the interest payments over two years. [46] The RAD disagrees. Even though the RPD may enjoy an advantage, having seen and heard the female appellant during her testimony, the fact that she took time to respond is insufficient to draw a negative inference. She answered the RPD's questions. Certainly, the female appellant took some time before answering, but the RAD is not of the opinion that, based on this testimony, a finding can be made that she was not credible and that this loan never happened. The female appellant gave the amount and explained where it had happened and to whom. It would have been necessary to ask other questions to support the lack of credibility finding. [47] Concerning the interest rates that seemed to be exorbitant to the RPD, it relied on the fact that the female appellant only knew what to answer when the RPD expressed its surprise in that regard. [48] The RAD is not of the opinion that it is fair to draw a negative inference from an observation made by the RPD, which was neither based on any factual evidence nor specialized knowledge with respect to loan-sharking. The testimony indicates that the female appellant paid XXXX XXXX monthly for each instalment of XXXX XXXX XXXX. The RAD is of the opinion that, while it is exorbitant, this is not impossible or implausible. [49] The RAD is of the opinion that the finding that the RPD did not believe that the female appellant took out a loan is not justified. The RPD erred. [50] That said, could the passage of time ensure that the appellants would no longer have any fear of XXXX, the lender, if they were to return to the country? [51] The appellants submit that time does not change anything with respect to this debt. [52] The RAD cannot rule on this issue because it would have been relevant to address the issue of the an internal flight alternative (IFA) in connection with this debt, which was not done. In other words, could the appellants have relocated elsewhere without having to face the consequences of a loan that was not fully repaid? [53] With respect to the issue of failing to seek asylum in the United States, it is true that she spent almost three years without status before obtaining TPS in 2010. It would have also been relevant to find out why the female appellant returned to Haiti in the second half of 2007, even though she feared XXXX and her husband there. [54] Although it is relevant, failing to seek protection in the United States is, in itself, insufficient in this case to establish, by this absence, that the female appellant neither had a subjective fear nor was credible with respect to her fear of XXXX. [55] In addition, the female appellant was not asked any questions to determine exactly why she fears this person. [56] For example, could she not have continued to repay given that she did so previously? [57] For all these reasons, the RAD concludes that there are insufficient reasons to find that the appellants are not credible. The RPD erred in that regard. [58] The RAD is not able to substitute its own decision; the female appellant must be asked additional questions related to her refugee protection claim. [59] The RAD refers this matter for re-determination to a differently constituted RPD panel, giving the following directions. DIRECTIONS [60] Further explore the possibility of an IFA. [61] Further explore the possibility of returning voluntarily to Haiti. [62] Further explore the possibility of a prospective fear in relation to the debt to XXXX. [63] The RAD is not able to substitute its own determination; the female appellant must be asked additional questions related to her refugee protection claim. REMEDY [64] Under subsection 111(1) of the IRPA, the RAD refers the files to the RPD for re-determination, giving the previously mentioned directions. [65] The appeals filed by XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX are allowed. Roxane Cyr Roxane Cyr October 30, 2018 Date IRB translation Original language: French 1 X (Re), 2017 CanLII 33034 (CA IRB). 2 Idem, para. 116 b). 3 Idem, para. 116 c). 4 Idem, para. 116 e). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-04523 MB8-04524 12