MB9-07293

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 : MB9-07293 MB9-07294 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 17, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Walid Ayadi Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] Ms. XXXX, you are a citizen of Haiti. You stated that because of your sexual orientation as a lesbian, you experienced serious problems in your country in the past and you fear being persecuted in the future. [2] You acted as the designated representative of your minor son, XXXX XXXX XXXX, who is a citizen of the United States (US). You stated that in the US, considering the conditions experienced by children separated from their parents, he would face a risk of cruel or unusual treatment.1 [3] The Refugee Protection Division (RPD) found that you were not credible regarding your alleged experiences in Haiti and that you failed to establish that you are a lesbian. It also concluded that you failed to establish that you face a well-founded fear of persecution solely because you are a woman. Regarding your minor son, the RPD concluded that being separated from you did not constitute persecution within the meaning of section 96 or cruel and unusual treatment within the meaning of section 97 of the Immigration and Refugee Protection Act2 (IRPA). [4] In your memorandum, you submit that the RPD erred in its assessment of your credibility, did not take into account your vulnerability and did not properly apply the Chairperson's Guidelines. Regarding your minor child, you submit that the RPD erred in its assessment of his fear in Haiti and the US, as it considered only the ground of separation, with respect to the US.3 [5] I conclude that the RPD did not err as you allege. In the following paragraphs, I will explain how I arrived at this conclusion. In light of this conclusion, your appeal is dismissed. ANALYSIS OF THE APPEAL [6] The role of the Refugee Appeal Division (RAD) is not to conduct a de novo review of refugee protection claims, but rather to determine whether the RPD erred as alleged.4 I have conducted my own examination of the record, primarily by listening to the recording of the RPD hearing5 and taking into account the Chairperson's Guidelines.6 I conclude that the correctness standard of review is to be applied.7 A. The Refugee Protection Division applied the Chairperson's Guidelines [7] In your memorandum, you submit that the RPD did not apply Chairperson's guidelines 3, 4 and 9, which is a question of procedural fairness. However, you do not provide any concrete examples supporting a conclusion that the RPD failed to exercise its discretionary authority by taking these guidelines into account.8 [8] Although the guidelines are not binding, their principles must be applied. That said, it is not necessary to cite the Guidelines section by section or to specifically annotate each point.9 [9] Based on my own analysis of the record, not only did the RPD clearly indicate in its decision that it had considered Guidelines 4 and 9,10 but it also applied them in practice, as it did Guideline 3. B. You have not established your sexual orientation as a lesbian [10] In your memorandum, you submit that the RPD erred in its assessment your credibility regarding your sexual orientation. Specifically, you state that the RPD distorted your testimony and rejected your explanations in order to identify omissions and contradictions, following an approach that was not in line with Immigration and Refugee Board of Canada (IRB) procedures, while failing to take into account your vulnerability. [11] Based on my own assessment of your testimony as a whole and the documentary evidence you presented before the RPD, your argument is unfounded. [12] A refugee protection claimant's gender identity or sexual orientation is a fundamental component of their human identity and must be considered with sensitivity and rigour. The RPD may come to the conclusion that a person who claims to be lesbian is not credible, but it cannot come to such a conclusion without considering all of the evidence, including the person's statements that they are indeed of that sexual orientation. During a hearing, the perpetuation of stereotypes must be avoided; it is important to be tactful in asking relevant questions and to adopt an understanding attitude not only toward sexual practices themselves, but also toward society's disapproval of appearances, attitudes and behaviours that are deemed not to conform to cultural values and norms.11 [13] The Chairperson's Guideline 9 states that a claimant's testimony may be the only evidence of their sexual orientation where corroborative evidence is not available.12 It also states that if testimony about same-sex relationships is vague and lacking in detail, the decision-maker must establish whether there are cultural, psychological or other barriers that may explain the manner in which the testimony was delivered.13 The Guidelines further state that the process of accepting one's gender identity may change over time and with the context in which the person finds themself.14 [14] That said, claimants are responsible for establishing, on a balance of probabilities, the facts on which their claim is based, including their sexual orientation. [15] When a claimant swears that their allegations are true, they are presumed to be telling the truth. However, this presumption is rebuttable when the evidence is inconsistent with the testimony or when the RPD is not satisfied with the explanations provided for those inconsistencies. The RPD can draw negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed. [16] In your Basis of Claim Form (BOC Form) and testimony, you described yourself as a lesbian15 and stated that, for two years in Haiti, you were in a romantic relationship with a female childhood friend, but have not been in any other romantic relationships with women, including here in Canada.16 [17] I have listened to the recording of the hearing before the RPD. The RPD asked you questions in a respectful manner, using appropriate language, and always let you take the time you needed to respond to those questions.17 In its decision, the RPD clearly indicated the many reasons that led it to conclude that you were not credible regarding your sexual orientation.18 Based on my own analysis, that finding was based on your testimony, without distorting it or relying on stereotypes or inappropriate assumptions.19 [18] Here are some examples that demonstrate that the RPD indeed listened to both your testimony and the explanations you provided. [19] The first relates to the affectionate gestures, hugs and kisses on the lips that you and your girlfriend allegedly exchanged in public, on several occasions and in different places in Haiti, which identified you as a lesbian couple. When asked to explain whether you were afraid that kissing in public would lead to problems for you given that homosexuality is not accepted in your country, you responded that it did cause problems, but that you were obliged to do it because you loved each other.20 On this point, I am of the opinion that the RPD did not err, because the behaviour you described cannot be that of a person who, despite wanting to be open about their sexual orientation, must be cautious given the hostility of their country's population. [20] The next example concerns your relationship with the father of your child. When asked to explain the contradiction between your testimony, according to which you had no relationship with this man, and your previous statements that he was your common-law partner, you responded that since he had let you stay at his home, you had agreed to sleep with him.21 On this point also, I am of the opinion that the RPD did not err, given that you stated under oath that this man was indeed your common-law partner, not simply someone you were staying with who allegedly ultimately took advantage of you. [21] More generally concerning your romantic relationship with your female childhood friend, the RPD asked you several questions allowing you to explain who she was, when you had met, what your relations were like, how and where you had relations, and how your parents and the general population had reacted.22 The RPD also asked several questions about the rape you and your friend were allegedly victims of and about your experiences afterward until you left Haiti, which you stated you did because your friend was murdered.23 Based on my own analysis of the record, the RPD did not err in identifying, during the hearing, omissions and contradictions relating to the existence of this romantic relationship and the tragic events you allegedly experienced. [22] One example is the fact that your friend's name was not mentioned in your BOC Form. On this point, you explained that you had written her name in Creole, but that the person who had translated your text into French had not included it. In my opinion, this explanation is not acceptable, given that you stated at the start of the RPD hearing that the content of your BOC Form had been translated for you and that it was complete, true and correct. [23] A second example is the fact that you did not mention in your BOC Form that your friend was at your house when the young men came asking for you and that you and she fled together. On this point, you stated that it was written in Creole. In my opinion, this explanation is not acceptable, given that you stated at the start of the hearing that the information in your BOC Form was complete, true and correct. [24] A third example is the fact that you did not provide your friend's death certificate. On this point, you explained that all the documents were in her family's possession and that the family no longer resides at the same location. According to my analysis of your testimony, you did not demonstrate that you made any efforts to obtain such a document. Failure to file supporting documentation that it is reasonable to expect may have an impact on a claimant's credibility.24 It is clear from rule 11 of the Refugee Protection Division Rules (RPD Rules) that claimants have a duty to provide documents and other elements in support of their claim. I am of the opinion that this is clearly a situation in which it was reasonable to expect that you would make an effort to obtain the death certificate for the person with whom you were allegedly in a romantic relationship for two years in Haiti.25 C. No probative value should be given to the medical report [25] In its decision, the RPD gave no probative value to the medical report you presented, as it had previously found that your overall credibility had been significantly undermined by a number of contradictions, and it did not believe that you had been in a relationship with another woman or that you had been raped.26 [26] In your memorandum, you submit that the RPD unfairly rejected this medical report. You also argue that the RPD then expressed its previous intention to reject your claim and demonstrated a limited view of the procedures for accepting evidence. [27] In my opinion, these arguments are unfounded. According to the case law, a decision-maker may make a decision concerning the weight to give to a document after assessing the document's credibility, probative value or both.27 It is open to the RPD not to give evidentiary weight to assessments or reports that are based on underlying elements found to be not credible.28 Lastly, documentary evidence is not assessed in isolation from the overall claim for refugee protection. When the claimant's personal testimony is not credible, it is reasonable for the RPD to have concerns regarding the credibility of the documentary evidence supporting the claim, and the RPD may grant it minimal weight.29 In my opinion, that is exactly what the RPD did, as its decision was very clear in this regard. [28] In any event, among the factors to be considered when assessing an expert report, the Federal Court recently identified the methodology used by the expert to formulate their opinion, their field of expertise and the extent to which they are found to be impartial and objective.30 A section of a report advocating in the claimant's interests is neither reliable nor relevant with respect to the primary findings that fall under the jurisdiction of the administrative tribunal in question.31 [29] Both the RPD and the RAD must take into account the claimant's health condition and consider any medical or psychological report that provides information about whether the claimant's physical or psychological health could affect their behaviour during the hearing.32 It would be an error to draw conclusions regarding a claimant's credibility without taking into account their psychological assessment, for example.33 However, when it is based on an account that has been discredited, a report provided by a psychologist, anthropologist or other expert cannot repair the credibility of that account.34 [30] In short, an expert report cannot, by itself, establish the credibility of a claimant's allegations.35 In other words, an expert report cannot be used as a tool to assess whether a claimant's account is truthful. Furthermore, Guideline 8 is very clear on this subject: 8.4 Experts should not offer opinions on issues within the exclusive jurisdiction of the decision-maker, such as the merits of the person's case. 8.5 An expert's opinion is not in itself proof of the truthfulness of the information upon which it is based. The weight given to the report will depend, among other things, on the credibility of the underlying facts in support of the allegation of vulnerability.36 [31] During the hearing, the RPD asked you several questions about the medical report that you provided.37 I have read this medical report.38 Based on my own analysis, no probative value should be given to this document. [32] First, the physician who appears to have signed this document is presented as a general practitioner. However, this document is not accompanied by an identity document for the physician or by a statutory declaration from him. In my opinion, this means that there is cause to question the identity of the person who signed the report. [33] Second, I note significant contradictions between the content of this document and your testimony. The report indicates that, at 10 p.m. on November 1, 2014, you told your physician that you had been brutally raped by a group of around 45 men, who pointed a gun at you. However, during your testimony before the RPD, you stated that you had been raped on November 1, 2014, at around 6 p.m., by several young men who spit in your face, and that you had arrived unconscious at the health centre and woken up the following day.39 If you were unconscious until the following day, you would not have been able to tell the physician at 10 p.m. that you had been raped by a group of men. Furthermore, you did not mention during your testimony that the men had pointed a gun at you as they approached you. [34] Lastly, the report mentions that you had scratches and scrapes on your face and arms. However, in your testimony, you stated that you had blisters all over your body because the men had hit you many times. The presence of scratches and scrapes on your face and arms is not the same as the presence of blisters all over your body. These contradictions undermine your credibility. [35] Therefore, in my opinion, it is open for me to conclude that your credibility is at issue without giving you an opportunity to provide explanations, given that your credibility does not constitute a new issue in this appeal.40 D. The Refugee Protection Division did not err with respect to your fear as a woman [36] In your memorandum, you submit that the RPD did not effectively apply the Chairperson's Guideline 4, although you testified at length that you feared the violence and assaults experienced by women in Haiti and that you remain a vulnerable person, given that your family members were not able to protect you in the past and you are no longer dependent on them. You also submit that your subjective fear is largely supported by the documentary evidence. [37] As the RPD did not believe that you are a lesbian or that you were raped and in mourning following the murder of your friend, it analyzed your fear as a single woman belonging to the particular social group of Haitian women. It found that you had not established that you would face a serious possibility of persecution simply because of your membership in this particular social group.41 [38] Based on my own analysis of the documentary evidence, the Chairperson's Guideline 4 and the case law, Haitian women as a group are subjected to serious violations of their basic rights because of their gender and do indeed constitute a particular social group within the meaning of section 96 of the IRPA.42 That being said, even accepting that Haitian women are currently the victims of serious violations of their basic rights and constitute a particular social group within the meaning of section 96 of the IRPA, a claimant must still establish the existence of a reasonable chance or a serious possibility of persecution, or that she would face more than a mere possibility of persecution as a result of her membership in the particular social group of Haitian women.43 To discharge their burden of establishing that they meet the refugee definition, a claimant must establish that they have a subjective fear persecution and that their fear is objectively well-founded.44 A subjective fear of persecution is based on an assessment of the claimant's credibility, while their objective fear is usually established by documentary evidence regarding the country conditions.45 [39] The RPD concluded that you could live with family members if you returned to Haiti.46 This is indeed an element that must be considered.47 That said, in my opinion, this is not equivalent to the protection that state authorities are supposed to be able to provide to their citizens. In any event, even assuming that the RPD erred in concluding that you would be able to live with your relatives, you still have not established a subjective fear of persecution as a woman in your country. [40] In fact, you did not mention anything on this specific issue in your BOC Form. Such an omission demonstrates a lack of subjective fear.48 Moreover, during the hearing, in response to a question, you told the RPD that apart from your fear of being persecuted as a lesbian, you feared nothing else.49 Later, in response to a question from your lawyer, you stated that if you returned to Haiti, no one would be able to help you, that you do not have a husband and that women are not really safe.50 The RPD then asked you to explain this contradiction. You responded that you did not have a husband and that, if you had no one, you could not. When asked to explain why you did not mention in your BOC Form that you feared persecution in Haiti simply on the grounds of being a woman, you responded that you already knew, that it was in your mind, that if you returned to Haiti, you would be killed, and that that was why you had not mentioned it in your BOC Form.51 In my opinion, your explanation for why you did not mention in your BOC Form that you feared persecution in your country not only as a lesbian, but also simply as a woman living in Haiti, is not acceptable, given that you stated at the beginning of the RPD hearing that the information in your BOC Form was complete, true and correct. [41] Furthermore, you found yourself without a partner in the US, alone with your child. However, you did not file an application for asylum in that country. In your BOC Form, you stated that you approached a lawyer in the US, but that you abandoned the process because applications for asylum are becoming too complicated. In my opinion, with all due respect, this conduct is inconsistent with that of someone who has a subjective fear of persecution, should they have to return to their country.52 E. You have not established a serious fear of persecution in the US [42] In your memorandum, you submit that the RPD erred with respect your minor son's fear in the US, because it considered only the ground of his separation from his parents in that country and did not address what he might go through in foster homes or shelters. [43] During the hearing, you stated that you feared that in the US, your minor son would be placed in a shelter, that he could be raped, that anything might happen to him, and that he would not have a good life growing up without you. You also stated that it would not really be with your consent if he returned to the country where he was born, but where you had no one, and that it is always preferable for a child to be raised by their mother and father. Regarding Haiti, you stated that you would be killed there and that your minor son would therefore be living there alone, without you.53 [44] In its decision, the RPD commented only on your minor son's fear with respect to his country of citizenship, the US. It acknowledged that it would be regrettable if he were separated from you and that it was reasonable to believe that his placement in a foster home in that country could constitute a risk under subsection 97(1) of the IRPA. That said, relying on a Federal Court decision, it found that these were humanitarian and compassionate considerations. It concluded that your son's separation from his parents did not amount to a serious possibility of persecution and that he would not be personally subjected to a risk within the meaning of subsection 97(1) of the IRPA.54 [45] The Federal Court decision on which the RPD based its finding clearly states that it would be improper and pure speculation for a tribunal to decide a case for need of protection on the mere fact of potential separation and that, in any event, the IRPA contains statutory provisions to consider the children's best interests.55 Furthermore, in another decision, the Federal Court found that the living or accommodation arrangements, even of minors in their country of citizenship, were not relevant considerations in the absence of evidence of persecution, danger of torture or a risk to life.56 In my opinion, the RPD did not err in concluding that a serious fear of persecution or the existence of a risk to your minor son's life had not been established with respect to the US. [46] Given that, with regard to his country of citizenship, your minor child failed to establish a fear of persecution within the meaning of section 96 or a risk to his life within the meaning of section 97 of the IRPA, his fear with respect to Haiti did not need to be analyzed.57 F. You could decide to return to Haiti with your minor son [47] Nevertheless, I will add that you could maintain contact with your child by bringing him back to Haiti with you. He would thus not be separated from you or obliged to live in the US. [48] When asked what prevented you from bringing your minor son with you if you had to return to Haiti, you responded that: [translation] various articles in the Convention on the Rights of the Child consider the child's best interests and favour a better life for children affected by removals; although you could obtain Haitian citizenship for your minor child, bringing him to Haiti would endanger his best interests, and he would face excessive difficulties that would jeopardize his life and safety; your child would be persecuted because he is part of your family and because you have a well-founded fear in Haiti by reason of your sexual orientation and your vulnerability as a single mother; you referred to the documentary evidence of violence against children and the serious possibility that your child would endure such treatment should he return to Haiti; you argued that bringing your child to Haiti with you would constitute treatment that shocks the conscience, goes against established standards of decency, runs contrary to the principles of natural justice and denigrates dignity and human values; and you argued that you would face a significant lack of resources to provide him with a better life, that he would lack protection, health care, education and safety, and that his removal to Haiti would be a violation of the Convention on the Rights of the Child, which favours a better future for all children.58 [49] Although your child was born in the US, given that you were born in Haiti and have not renounced your nationality, he is also a Haitian citizen according to the constitution.59 [50] Even if obtaining Haitian citizenship for your minor son required some formalities, you have another solution to avoid him being separated from you. Before the RPD, you submitted as evidence the Convention on the Rights of the Child.60 Your lawyer referred to it during his submissions.61 You also referred to it in your response regarding the possibility for you to return to Haiti with your son. The Convention stipulates that States Parties shall ensure that a child shall not be separated from his or her parents against their will, acknowledging that there are situations in which separation may be necessary for the best interests of the child.62 It also stipulates that all applications by the parents of a child to enter or leave a State Party for the purpose of family reunification shall be dealt with in a positive, humane and expeditious manner.63 Haiti has ratified this Convention, and it is possible for you to ask the authorities if he can accompany you to this country where, based on my finding, you have not established a well-founded fear of persecution. [51] You submit that there is a serious possibility that your minor son would be persecuted merely because he is a child and would be living in Haiti, a country that is facing real challenges with respect to both the provision of care and services to children and the violence children are victims of. It is true that more weight must be given to the objective rather than the subjective elements of a refugee protection claim when a child cannot testify about their own fear.64 It is clear that, so far, your minor son has been neither a witness to nor a victim of violence.65 You stated that you would be alone with him in Haiti. However, he also belongs to an extended family who, directly or indirectly, will undoubtedly be able to help him. That being said, taking into account the conclusion that you have not established that you would face a serious possibility of persecution in Haiti, and based on my analysis of the documentary evidence, and I say this with all due respect, if your child were to accompany you to Haiti, he would not face a situation amounting to persecution within the meaning of section 96, or a risk to his life or a risk of cruel and unusual treatment within the meaning of section 97 of the IRPA. CONCLUSION [52] For these reasons, I confirm the RPD's determination, namely, that you, XXXX XXXX XXXX, and your minor son, XXXX XXXX XXXX, are neither refugees under section 96 nor persons in need of protection within the meaning of section 97 of the IRPA. [53] Your appeal is dismissed. Bissonnette, Alain 17-02-2020 16:27:31 9.6.0 (Signed) Me Alain Bissonnette Date IRB translation Original language: French 1 Your Basis of Claim Forms (BOC Forms) and their amendments are reproduced at pages 22 to 41 of the digital version of the Refugee Protection Division (RPD) record. The documents you presented as evidence are reproduced at pages 72 to 140 of the digital version of the RPD record. 2 RPD Reasons and Decision, April 2, 2019, pages 5 to 17 of the digital version of the RPD record. 3 Appellants' memorandum, May 10, 2019, pages 9 to 31 of the digital version of the appeal record. 4 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 5 Recording of the RPD hearing on March 13, 2019, 00:01 to 02:31:17 (2 hours, 31 minutes and 17 seconds). 6 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues, effective date: September 30,1996; Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective date: November 13, 1996; Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, effective date: May 1, 2017. These guidelines can be accessed on the IRB website. 7 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93. 8 IRB, Policy on the Use of Chairperson's Guidelines, effective date: October 27, 2003. This policy can be accessed on the IRB website. 9 Michel-Querette v. Canada (Minister of Citizenship and Immigration), No. IMM-5919-18, Pentney, June 18, 2019; 2019 FC 827, paragraphs 7, 13 and 14. 10 RPD Reasons and Decision, supra endnote 2, paragraph 3. 11 United Nations High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/12/09, October 23, 2012, unpaginated, paragraphs 5 to 9, 15 and 23. This document can be accessed on the UNHCR website. Although these guidelines are not binding, I consider that they are invaluable to the RPD and Refugee Appeal Division and worth consulting. 12 Guideline 9, supra endnote 6, sections 3.2 and 7.2.1. 13 Ibid., section 7.6.1. 14 Ibid., section 2.4. 15 Ibid., section 2.8: An individual who identifies as a woman and whose physical, romantic and/or emotional attraction is primarily to other individuals who identify as women. 16 Recording of hearing, 20:00 to 24:30 and 55:30 to 01:00:00. 17 Guideline 9, supra endnote 6, sections 4.1, 4.2, 4.3 and 7.3. 18 RPD Reasons and Decision, supra endnote 2, paragraphs 15 to 47. 19 Guideline 9, supra endnote 6, sections 3.2 and 7.2.1. 20 Recording of hearing, 52:10 to 54:00 and 01:47:30 to 01:49:30. 21 Ibid., 38:40 to 44:30. 22 Ibid., 22:00 to 38:40 and 44:30 to 54:00. 23 Ibid., 01:00:00 to 01:13:00 and 01:23:40 to 01:49:30. 24 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, paragraph 32. Kallab v. Canada (Minister of Citizenship and Immigration), No. IMM-5130-17, Annis, May 16, 2019; 2019 FC 706, paragraph 150. 25 With respect to the matter of knowing when refugee protection claimants can be asked to provide documents corroborating their claims, a detailed analysis is provided in Luo v. Canada (Minister of Citizenship and Immigration), No. IMM-5059-18, Strickland, June 17, 2019; 2019 FC 823, paragraphs 18 to 22. 26 RPD Reasons and Decision, supra endnote 2, paragraph 47. 27 Magonza v. Canada (Minister of Citizenship and Immigration), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paragraphs 16 to 26. 28 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 24. 29 Ogaulu v. Canada (Minister of Citizenship and Immigration), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, paragraph 26. 30 Moffat v. Canada (Minister of Citizenship and Immigration), No. IMM-3484-18, Annis, July 5, 2019; 2019 FC 896, paragraph 58. 31 Molefe v. Canada (Minister of Citizenship and Immigration), No. IMM-8071-13, Mosley, March 12, 2015; 2015 FC 317, paragraphs 31 and 32. 32 Atay v. Canada (Minister of Citizenship and Immigration), No. IMM-1205-07, O'Keefe, February 15, 2008; 2008 FC 201, paragraph 32. 33 Yasun v. Canada (Minister of Citizenship and Immigration), No. IMM-3669-18, Grammond, March 20, 2019; 2019 FC 342, paragraphs 10 to 17. 34 Al-Sharan v. Canada (Minister of Citizenship and Immigration), No. IMM-1920-19, Strickland, November 15, 2019; 2019 FC 1438, paragraph 34. Ndoungo v. Canada (Minister of Citizenship and Immigration), No. IMM-4397-18, Le Blanc, April 30, 2019; 2019 FC 541, paragraph 26. 35 Solomon v. Canada (Minister of Citizenship and Immigration), No. IMM-6239-03, Blais, September 15, 2004; 2004 FC 1252, paragraph 13 where Justice Blais cites several other Federal Court decisions that put forward the same proposal with regard to reports drafted by psychologists. 36 IRB, Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB, which came into force on December 15, 2006, and was amended on December 15, 2012. These guidelines can be accessed on the IRB website. Orozco Hurtado v. Canada (Minister of Citizenship and Immigration), No. IMM-2081-07, Frenette, February 29, 2008; 2008 FC 270, paragraph 51. 37 Recording of hearing, supra endnote 5, 01:01:00 to 01:23:00. 38 This document is reproduced at pages 84 to 88 of the digital version of the RPD record. 39 Recording of hearing, 01:01:00 to 01:04:30; 01:09:30 to 01:10:00 and 01:17:30 to 01:18:30. 40 Corvil v. Canada (Minister of Citizenship and Immigration), No. IMM-4055-18, LeBlanc, March 12, 2019; 2019 FC 300, paragraphs 13, 14 and 15. 41 RPD Reasons and Decision, supra endnote 2, paragraphs 48 to 59. 42 XXX, February 7, 2019, 2019 CanLII 113798 (CA IRB), paragraphs 20 to 27. 43 LF and EL v. Canada (Minister of Citizenship and Immigration), No. IMM-5088-15, Kane, May 12, 2016; 2016 FC 534, paragraphs 45 to 49. 44 Jean v. Canada (Minister of Citizenship and Immigration), No. IMM-2478-18, Gagné, February 27, 2019; 2019 FC 242, paragraph 16, citing the decision of the Supreme Court of Canada in Ward, [1993] 2 S.C.R. 689. 45 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM-4087-08, Beaudry, April 23, 2009; 2009 FC 398, paragraph 16. 46 RPD Reasons and Decision, supra endnote 2, paragraphs 56, 57 and 58. 47 Josile v. Canada (Minister of Citizenship and Immigration), No. IMM-3623-10, Martineau, January 17, 2011; 2011 FC 39, paragraph 36. Joseph v. Canada (Minister of Citizenship and Immigration), No. IMM-5386-17, Roussel, June 20, 2018; 2018 FC 638, paragraphs 7, 16 and 17. 48 Jean, supra endnote 44, paragraph 17. 49 Recording of hearing, 01:53:00 to 01:53:45. 50 Ibid., 01:58:30 to 01:59:00. 51 Ibid., 01:59:00 to 02:01:00. 52 Arabambi v. Canada (Minister of Citizenship and Immigration), No. IMM-462-19, Russell, January 22, 2020; 2020 FC 98, paragraphs 44, 45 and 46. 53 Recording of hearing, 02:05:00 to 02:07:00. 54 RPD Reasons and Decision, supra endnote 2, paragraphs 60 to 63. 55 Gomez v. Canada (Minister of Citizenship and Immigration), No. IMM-4136-09, Lemieux, March 1, 2010; 2010 FC 237, paragraph 40. 56 Liu v. Canada (Minister of Citizenship and Immigration), No. IMM-6390-09, Zinn, August 13, 2010; 2010 FC 819, paragraph 18. 57 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 694, 751 and 752. 58 Written submissions, February 11, 2020, digital version of 8 pages. 59 IRB, National Documentation Package on Haiti, September 30, 2019, Tab 3.6, Haiti's Constitution of 1987 with Amendments through 2012. Title II: Haitian Nationality, Article 11: "Any person born of a Haitian father or Haitian mother who are themselves native-born Haitians and have never renounced their nationality possesses Haitian nationality at the time of birth." 60 The text of this Convention is reproduced at pages 132 to 139 of the digital version of the RPD record. It is also accessible on the Office of the United Nations High Commissioner for Human Rights website: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx. This Convention came into force on January 12, 1992. Adopted by the United Nations General Assembly on November 20, 1989, this Convention was signed by Canada on May 28, 1990, and ratified on December 13, 1991. It was signed by Haiti on January 26, 1990, and ratified on June 8, 1995. Information on this subject is accessible on the United Nations website on treaties: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en. 61 Recording of hearing, 02:08:00 to 02:29:50. 62 Convention on the Rights of the Child, article 9, paragraph 1. 63 Ibid., article 10, paragraph 1. 64 Guideline 3, supra endnote 6, under section II: Assessing the Evidence. 65 Which distinguishes him from the situation in Modeste v. Canada (Minister of Citizenship and Immigration), No. IMM-9659-12, Russell, December 18, 2013; 2013 FC 1262, paragraphs 29 to 35. Iqbal v. Canada (Minister of Citizenship and Immigration), No. IMM-2723-19, Pamel, January 30, 2020; 2020 FC 170, paragraphs 63, 64 and 65. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------