MB4-01846

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 : MB4-01846 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision November 21, 2014 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Eric Taillefer 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 XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection, determining that the appellant was 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 asking the Refugee Appeal Division (RAD) to allow her appeal, to set aside the RPD determination and to grant her refugee status. [3] The appellant did not present any new evidence in support of her appeal under subsection 110(4) of the IRPA and is not asking that a hearing be held under subsection 110(6) of the IRPA. [4] The Minister did not intervene in this appeal. DETERMINATION OF THE APPEAL [5] In accordance with subsection 111(1) of the IRPA, the RAD hereby sets aside the RPD determination that XXXX XXXX XXXX XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 or a "person in need of protection" under section 97 of the IRPA and refers the matter to the RPD for re-determination by a differently constituted panel. [6] The appeal is allowed. FACTUAL BACKGROUND [7] The appellant is from Haiti. She left her country permanently on XXXX XXXX, 2013. She arrived in Canada the same day, and claimed refugee protection on January 8, 2014. [8] In her BOC Form, she alleges that she fears returning to her country because she is afraid that criminals will come after her and rape her. She states that she was personally targeted by criminals twice in the city of Port-au-Prince. [9] The first time was on September XXXX, 2013. She states that she was attacked at her home by two armed individuals who stole money and cellphones from her. The next day, she went to the police station to lodge a complaint because, the day before, when she had called the police station, no one had answered her call. After filing her complaint, she sought refuge at the home of her cousin in Maïs Gâté. She returned home on November 1, 2013, after police officers informed her that the criminals lurking in her neighbourhood had been arrested. [10] Another time was on November XXXX, 2013. The appellant states that at 4:00 am, three or four men threw things at her house and fired shots. After neighbours intervened, the criminals fled. Again, she went to the police station to file a complaint. Her attempt was in vain, as the police officers told her that they did not have enough vehicles to patrol the area. Fearing for her safety, she returned to her cousin's home in Maïs Gâté and stayed there until she left Haiti. She adds that she did not know the perpetrator of these crimes; what they wanted was money and goods. Decision under review [11] In a decision rendered on March 30, 2014, the RPD rejected the claim for refugee protection for the following reasons: - The appellant did not establish that she had a subjective fear of persecution; - The RPD was of the opinion that her credibility was undermined by the fact that she waited a number of months before claiming refugee protection, and the explanations given to justify the delay in filing a claim were considered insufficient; - The RPD adds that the appellant did not discharge her burden of establishing that the state could not offer her adequate protection, and that she had an internal flight alternative (IFA) in Maïs Gâté, close to her family. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's claims [12] The appellant submits that the RPD erred in concluding that she did not have a subjective fear because she did not file a claim for refugee protection before her last trip to Canada, because she returned to live in her house, and because there was a delay in filing her claim for refugee protection. [13] She also submits that the RPD erred in concluding that state protection is adequate in Haiti. She maintains that [translation] "the analysis of state protection is a question of law, and the burden on the appellant is that of a balance of probabilities."1 [14] She further argues that the RPD erred in its analysis of the second prong of the IFA, namely, because of [translation] "the difficulties that women have in finding employment in Haiti, ... that she would probably be unable to find a house or accommodations, ... and that it is completely unreasonable for her to move to Maïs Gaté permanently...." RAD'S ROLE AND FUNCTIONS [15] In her memorandum, the appellant made no arguments regarding the standard of intervention to be applied in this appeal. [16] Since the RAD is a newly constituted appeal tribunal, an examination of its home statute and the criteria developed by the case law in the context of appeal tribunals and administrative law is in order. [17] The statutory provisions establish precisely the allowable grounds for appeal,2 as well as the RAD's "remedial powers." Parliament allows the RAD to confirm the determination under review, to set aside the determination and substitute the 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.3 [18] An appeal before the RAD is not in the nature of a judicial review,4 nor is it an opportunity for a new proceeding. In order to conduct its own assessment of the evidence and form its own opinion, the RAD generally proceeds without a hearing, on the basis of the appeal record.5 [19] The wording of subsection 111(2) of the IRPA suggests that Parliament favours the finality of decisions before the RAD. In fact, it states that the RAD may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the RPD is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the RPD.6 [20] The provisions of subsection 110(4) of the IRPA specify that the person who is the subject of the appeal may present only new evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. Should the "new evidence" be admissible, the RAD will hold a hearing only in the exceptional circumstances set out in subsection 110(6) of the IRPA. [21] The Federal Court, called on to determine the appropriate type of review by the RAD of RPD determinations, is faced with different lines of case law. [22] In two decisions rendered the same day,7 Justice Shore, finding the Appeal Court's reasoning in Parizeau v. Barreau du Québec 8 persuasive and instructive with regard to the standard of intervention to be applied by administrative appeal tribunals, states that: [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. ... [28] ... a specialized (if not overspecialized) tribunal ... the RAD's primary responsibility is to ensure the integrity and consistency of proceedings before the RPD and to reduce needless duplication of proceedings (including before the Federal Court). When analyzing a decision of the RPD, the RAD must not merely determine whether it was made in a reasonable manner, but, rather, analyze whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error (Housen, above). [23] Justice Shore adds that "palpable and overriding error" is often used interchangeably with the "clearly wrong" or "unreasonable" decision test. According to Justice Shore, "[e]ven though there are similarities, these standards are different." [24] Recently in Spasoja,9 in an analysis of the indicators of Parliament's intent when the RAD was created, 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", stating that the error must be "palpable and overriding to succeed on appeal." [25] Justice Roy adds 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)." [26] In Huruglica,10 writing on behalf of the Court, Justice Phelan states that the RPD 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."11 [27] In discussing the deference that the RAD owes to the RPD's findings, Justice Phelan states that it may well be justified to show "deference to [the] RPD's decision in a circumstance where a witness' credibility is critical or determinative." However, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [28] The Federal Court recognizes the RAD's expertise in refugee-related matters. According to the Federal Court, the IRPA confers broad powers, "allowing the RAD to dispose of the merits of appeals".12 The decisions rendered to date indicate 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."13 [29] Given the rulings in the above-mentioned decisions and the Court's subsequent decisions,14 it appears to me that the RAD, as a tribunal specialized in refugee protection matters, must review all the evidence to determine whether the decision is well founded. [30] In assessing the evidence, the RAD may show a measure of deference when the credibility of the refugee protection claimant is at the heart of the decision, or when the RPD is in an advantageous position over the RAD. [31] However, when the findings of fact or of mixed fact and law are erroneous or not supported by the evidence, it is appropriate to intervene using one of the means set out in subsections 111(1) and 111(2) of the IRPA. [32] It is generally accepted that errors of law do not justify any deference. In Alvarez and Eng, Justice Shore states that "the RAD must be able to correct any error of law." MERITS OF THE APPEAL [33] Credibility issues constitute questions of fact. The issues of whether the decision rendered is supported by the evidence and whether state protection is adequate are questions of mixed fact and law. The same is true of the internal flight alternative (IFA). [34] Having considered the evidence in the appeal record, I conclude that the RPD determination must be set aside. The RPD committed errors such that the decision is vitiated in its entirety. Furthermore, because I cannot substitute the determination that, in my opinion, should have been rendered, I am referring the matter to the RPD for re-determination by a differently constituted panel. The reasons for this decision follow. Section 96, subjective fear not established [35] The RPD concluded that the appellant had not established a subjective fear of persecution for the following reasons. She travelled nine times to Canada and the United States, and she returned to her country after each trip. She never claimed refugee protection because she was afraid of being raped by criminals. She then waited a number of months before claiming refugee protection, and she allegedly returned to her home after the police told her that certain criminals had been arrested. [36] In her memorandum, the appellant submits that the RPD committed major errors in concluding that she did not have a subjective fear. On this subject, she states that she did not have a subjective fear before September 2013, and consequently, she did not have any reason to claim refugee protection. She goes on to state that the authorities reassured her that the criminals had been arrested. Finally, she submits that her explanations for her delay in claiming refugee protection are reasonable. [37] Some of the information relied on by the RPD in its assessment of the appellant's subjective fear is erroneous. For instance, the RPD is of the opinion that the claimant delayed for a number of months before claiming refugee protection. Yet, the evidence reveals that the appellant arrived in Canada on XXX XXXX, 2013, and that she claimed refugee protection on January 8, 2014. That is a five-week time span. Similarly, it seems wrong to me to criticize the appellant for returning to live at her home after the police had informed her that the criminals lurking in the neighbourhood had been arrested. However, I am of the opinion, after assessing all the evidence, that in returning to Haiti after travelling outside the country a number of times, she undermined the subjective element of her fear of persecution by reason of her membership in the particular social group of "women". [38] The framework of analysis suggested by Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution15 states that "[t]he gender-defined group cannot be defined solely by the fact that its members share common persecution." [39] In Dezameau,16 Justice Pinard states that: This is not to say that membership in a particular social group is sufficient to result in a finding of persecution. The evidence provided by the applicant must still satisfy the Board that there is a risk of harm that is sufficiently serious and whose occurrence is "more than a mere possibility". [40] The evidence reveals that, before the incident in September 2013, the appellant, despite the prevailing insecurity in Haiti, travelled nine times outside the country. Each time, she returned to her home. This suggests that she did not establish a serious possibility of persecution by reason of her gender. [41] Given the appellant's statements that her fear developed after the incident in September 2013, as well as her travel and return trips, it seems to me that this claim for refugee protection instead raises the issue of whether it is because of the prevailing insecurity in Haiti and the fact that she is perceived as having money because of her trips to Canada and the United States that she was targeted, rather than because of her membership in the particular social group of "women". It is therefore important to assess the source of her fear. Moreover, is this risk a personal risk that differs from the generalized risk that other Haitians face? This risk was not assessed by the RPD, which limited itself to assessing the refugee protection claim strictly under section 96 of the IRPA. This is an error of law, and the RAD cannot substitute the determination that, in its opinion, should have been made without questioning the appellant, which it cannot do, because hearings may be held only in the circumstances set out in subsection 110(6) of the IRPA. State protection [42] The appellant states in her memorandum that state protection is a question of law. Respectfully, I do not agree with this assertion. [43] The issue of state protection is a question of mixed fact and law. It requires the application of the rules of law and those established by the case law to the particular facts of the case, while considering the documentary evidence on country conditions. [44] As mentioned above, the Federal Court has two lines of case law concerning this type of question. When it comes to interpreting documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment."17 For Justices Shore and Roy, the RAD may show deference unless a palpable and overriding error is established.18 [45] State protection does not have to be perfect, but adequate. An assessment of the documentary evidence leads me to conclude that it is premature to consider that the Haitian state is capable of providing adequate protection, even if in the case at hand, some criminals lurking in the area where the appellant lived were arrested after she reported the incident in September 2013. Furthermore, the police officers' statements in November 2013, when they informed the appellant that they did not have a vehicle available to respond to her call, speak volumes regarding their ability to provide protection. [46] An assessment of the documentary evidence reveals that the police reform that started in 2006 led to improvements in its intervention capacity. Nevertheless, the earthquake in January 2010 dealt a devastating blow to its capacity, which was far from adequate. "[S]ecurity analysts have reportedly estimated that a force of 20,000 would be required to effectively serve the population and to maintain peace without outside assistance. ... Similarly, the UN reports that the PNH is not yet capable of taking full responsibility for internal security, despite improvements made in its performance and capacity. ..." It even seems that "the provision of security is unequal and that citizens need to have connections within the police force in order for their complaints to be addressed rapidly...."19 [47] According to Michel Forst, an independent expert on the human rights situation in Haiti, "although reforms of the police service have been under way for years, grave concerns about the institution persist."20 [48] The following excerpts from the documentary evidence are telling as to the inability of the Haitian state, for now, to provide adequate protection, even though efforts have been made to improve the situation. It states that, "... the weakness of government institutions, particularly the Haitian National Police (HNP), breed armed groups and remain a source of broader instability.... Police reform has made significant strides but is far from complete after nearly five years.... The country still lacks coherent public safety policies and the basic ability, within transparent democratic norms, to detain, prosecute and convict offenders, especially those responsible for serious crimes. The need for a cohesive criminal justice system that underpins the rule of law is paramount to end impunity driven by corruption, ineptitude and dysfunction."21 [49] A document dated May 2013 states the following: ... Haitians lack basic policing services, and many residents do not report assaults, rape, and other crime because of lingering, and too-often justified, perceptions of police apathy, incompetence, and corruption. A comparative analysis of figures from various police/security entities operating throughout Haiti reflects a continuation of the trend in which incidents of crimes are inaccurately or under-reported. The under-reporting is due to a lack of sufficient police presence and response capability and/or lack of faith in any action by the police to investigate. In a country of approximately 10 million people, the HNP has about 8,500 officers, approximately two-thirds of whom are deployed in the greater Port-au-Prince metropolitan area (Port-au-Prince has approximately two million residents). Due to this deficiency, many communities do not have the means to report crimes, though most experts agree that there is not much crime to report in provincial towns and rural areas. In addition, when crimes are reported they are not adequately documented in any sort of standardized reporting format. There is no vehicle patrolling by the HNP, and they have a very limited response capability. The HNP has minimal deterrent effect on criminals, who operate freely without fear of the mostly unarmed uniformed or traffic police. If the police are needed to interrupt a crime in progress or to investigate a criminal act that has already taken place, the victim normally must drive to the local police station and pick up an available police officer. The investigation of a crime is limited by lacking HNP resources.22 [50] This evidence leads me to conclude that in Haiti, the state is unable to provide adequate protection. In light of the documentary evidence, it appears to me that the RPD erred in concluding that the appellant can benefit from state protection in Haiti. Internal Flight Alternative (IFA) [51] I am of the opinion that the RPD committed a palpable and overriding error in the assessment of the IFA, in that it appears to me that concluding that such a possibility exists for the appellant, who [translation] "lived relatively hidden," would be contrary to the rules established by the case law. No one can require an individual to live relatively hidden. CONCLUSION [52] For these reasons, I conclude that the RPD determination must be set aside. I am referring the matter to the RPD for re-determination by a differently constituted panel, as I cannot substitute a determination without questioning the appellant. [53] The appeal is allowed. Maria De Andrade Me Maria De Andrade November 21, 2014 Date IRB translation Original language: French 1 Appellant's memorandum, p. 104. 2 Subsection 110(1) of the 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. 3 Subsection 111(1) of the IRPA. 4 Eng v. Canada (Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702; Huruglica v. (Citizenship and Immigration), 2014 FC 799. 5 RPD record, parties' memorandum or any [translation] "new admissible evidence". 6 Subsection 111(2) of the IRPA. 7 Supra, footnote 4, Eng and Alvarez. 8 Parizeau v. Barreau du Québec, 2011 QCCA 1498, [2011] RJQ 1506. 9 Spasoja v. (Minister of Citizenship and Immigration), 2014 FC 913. 10 Huruglica v. (Citizenship and Immigration), 2014 FC 799. 11 Idem. 12 Eng v. Canada (Citizenship and Immigration), 2014 FC 711. 13 Idem. 14 Alyafi v. Minister of Citizenship and Immigration, 2014 FC 952, Kurtzmalaj v. Canada (Citizenship and Immigration), 2014 FC 1072, Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080. 15 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, IRB, Ottawa, November 13, 1996. 16 Dezameau, Elancia v. M.C.I. (F.C., No. IMM-4396-09), 2010 FC 559. 17 Supra, footnote 10. 18 Supra, Eng, Alvarez and Spasoja. 19 National Documentation Package on Haiti, June 28, 2013; Tab 7.2; Haiti: Information on the security situation, including crime and kidnappings; measures taken by the government and other bodies to fight crime (June 2012-May 2014). 20 Idem, Tab 2.3, page 11. Report of the Independent Expert on the Situation of Human Rights in Haiti, Michel Forst. 21 Ibidem, Tab 10.6, Keeping Haiti Safe: Police Reform. Latin America/Caribbean Briefing No. 26. 22 Ibidem, Tab 7.4, Haiti 2013 Crime and Safety Report. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB4-01846 9 RAD.25.02 (February 7, 2014) Disponible en français