MB9-26744

RAD File No. / No de dossier de la SAR : MB9-26744 MB9-26745 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision November 19, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Me Myriam Harbec Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX (the appellant), a citizen of Haiti, and her minor son, XXXX XXXX XXXX (the minor appellant), a citizen of the United States, are appealing the decision of the Refugee Protection Division (RPD), rejecting their refugee protection claim. [2] The appellant XXXX XXXX XXXX XXXX XXXX was named the designated representative of her minor son. [3] In rendering its decision, the Refugee Appeal Division (RAD) took into account the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution. [4] For the reasons that follow, the appeal is allowed in part. BACKGROUND [5] In her Basis of Claim Form (BOC Form), the appellant alleges that she fears criminals in Haiti who want to harm her because of her XXXX activities at the XXXX XXXX XXXX XXXX XXXX XXXXi (XXXX), as well as her spouse's political activities in the city of Jacmel. [6] The appellants left Haiti for Canada in XXXX 2017. The appellant entered the country as a student and gave birth to her second child in XXXX 2018. [7] The appellant claimed refugee protection in Canada in February 2019. The minor appellant bases his claim on that of his mother. [8] Following a hearing held on September 26, 2019, the RPD rejected the appellant's refugee protection claim on the grounds that the evidence presented did not demonstrate a well-founded fear of persecution in her case or a likelihood that she would be subjected to a risk under section 97 of the Immigration and Refugee Protection Act (IRPA) if she had to return to Haiti. [9] In the case of the minor appellant, the RPD determined that no evidence was presented as to a well-founded fear of persecution or a likelihood of his being subjected to a risk under section 97 of the IRPA if he had to return to the United States, his country of citizenship. [10] Before the RAD, the appellants submit that the RPD erred in its assessment of the risk that the appellant would face if she had to return to Haiti, for reasons that will be addressed in the Analysis section, as needed. [11] For these reasons, the appellants are asking the RAD to set aside the determination of the RPD and grant them refugee protection or, alternatively, to refer the matter to the RPD for re-determination by a differently constituted panel. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [12] The role of the RAD is to review RPD decisions by applying the correctness standard of review after carrying out its own analysis of the record to determine whether, as submitted by the appellants, the RPD erred. ANALYSIS The appellant [13] The issue to be determined in the case of the appellant is whether the RPD erred in its assessment of the risk she would face if she returned to Haiti. [14] In my opinion, after analyzing the evidence presented before the RPD, which included the RPD's reasons, the submissions made on appeal, and listening to the RPD hearing, I am of the opinion that, respectfully, the answer to this question is yes, for the reasons that follow. [15] First, upon listening to the recording of the RPD hearing, I note that the appellant, who is XXXX-educated, gave straightforward and forthright testimony that, in my view, was free of any contradictions or omissions that could undermine her credibility. She confidently answered all the questions put to her without trying to evade them. In addition, the RPD did not question the credibility of the events alleged by the appellant. [16] The RPD's decision concerning the appellant is twofold, so to speak. [17] First, the RPD was of the opinion that the events experienced by the appellant between 2008 and 2015, while she was working as a XXXX for the XXXX, did not demonstrate a well-founded fear of persecution in her case or a likelihood of her being subjected to a risk under section 97 of the IRPA because of her behaviour, which it considered to be inconsistent with that of a person who fears living in her country. The decision is based on the fact that the appellant made numerous trips outside her country during that period and that she voluntarily returned to her country each time, as well as her delay in claiming refugee protection after arriving in Canada. [18] I am of the view that this portion of the RPD's decision is correct. Not only because her behaviour was inconsistent with that of a person who alleges to fear for her safety in her country, but also, in my opinion, because of the time that has passed since 2015, when the appellant stopped working as a XXXX for the XXXX. In my view, nothing in the evidence presented demonstrates that anyone might go after her today as a result of the alleged events that occurred because of the job she once held. [19] Next, the RPD was of the opinion that the alleged events involving her spouse since the appellant's departure in 2017 also fail to demonstrate a well-founded fear of persecution in her case or a likelihood that she would be subjected to a risk under section 97 of the IRPA, mainly because the events involving her spouse allegedly began in 2015 and the appellant left only in 2017 and waited until 2019 to claim refugee protection, and because that behaviour is inconsistent with that of a person who alleges that she fears living in her country. [20] Personally, I agree with the appellant's arguments on appeal. [21] The evidence presented before the RPD, which the RPD did not question, demonstrates that, although the appellant's spouse had had problems in 2015, those problems intensified as of 2018. [22] The appellant's spouse works as the XXXX XXXXfor the deputy of the region of Jacmel, who is a member of the Organisation du peuple en lutte [struggling people's organization]. [23] On XXXX XXXX, 2018, shots were fired at the car of the appellant's spouse; in XXXX 2018, he was detained on false charges of disturbing the peace and was released the same day after senior politicians intervened; in XXXX 2019, his home was vandalized; in XXXX 2019, a building attached to his home that was a place to meet and XXXX was burned down. [24] Before the RPD, the appellant submitted that the assaults against her spouse stem from the fact that he works for an elected member of the opposition, who is demanding that an inquiry be held in Haiti regarding the Petrocaribe fund, which was allegedly misappropriated by the Haitian government. [25] The appellant alleges that she fears that she and her children would be [translation] "collateral victims" of her spouse's problems in Haiti. [26] Personally, I am of the view that the evidence presented, which was found to be credible, does in fact demonstrate that the appellant would face a serious possibility of persecution if she had to return to Haiti by reason of her membership in the particular social group of [translation] "the family." [27] The persecution would be in the form of physical harm to her and the other members of her family, and damage to her property, such as in the form of the family home being vandalized or burned down. The persecution would be due to the political activities of the appellant's spouse, to which the appellant would likely be tied as a spouse, or that she would be a [translation] "collateral" victim as a member of the particular social group of [translation] "the family." [28] In addition, I am of the opinion that, in this case, the evidence presented demonstrates that state protection would not be adequate for the appellant in Haiti. Complaints were filed by her spouse but nothing apparently came of them. The appellant also testified that her spouse was unable to obtain a report from a justice of the peace after his home was vandalized. The documentary evidence on Haiti also reports that there is a high crime rate in the country and that little protection is available (see, in particular, Tab 10.2 of the Immigration and Refugee Board of Canada's National Documentation Package on Haiti, September 1, 2020).1 [29] I am also of the opinion that no internal flight alternative (IFA) would be available to the appellant in Haiti. The appellant's spouse is actively involved in politics in Haiti, and I am of the view that, for that reason, he could be located anywhere in the country if he lived there openly while continuing his activities. This implies that the appellant could also be located and persecuted for the above-mentioned reasons. Thus, I am of the view that it would be unreasonable for the appellant to seek refuge elsewhere in her country, given her particular circumstances. [30] Consequently, considering that the appellant's allegations are credible, that there is no IFA for her in Haiti or adequate state protection, I conclude that the appellant demonstrated that she would face a serious possibility of persecution by reason of her membership in the particular social group of [translation] "the family" if she had to return to her country. The minor appellant [31] In their memorandum, the appellants do not challenge the RPD's decision regarding the minor appellant, who is a citizen of the United States. After analyzing all the evidence presented, I fail to see how the RPD erred with respect to that conclusion. None of the evidence presented establishes a well-founded fear of persecution in the minor appellant's case or a fear of being subjected to a risk under section 97 of the IRPA if he had to return to his country of citizenship. REMEDY [32] The RAD sets aside the RPD's determination in part and substitutes the determination that, in its opinion, should have been made, namely, that XXXX XXXX XXXX XXXX XXXX is a "Convention refugee" under section 96 of the IRPA. [33] The RAD confirms the RPD's determination in part, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [34] The appeal is allowed in part. (signed) Normand Leduc Normand Leduc November 19, 2020 Date IRB translation Original language: French 1 National Documentation Package, Haiti, September 1, 2020, Tab 10.2: Crime, including protection available against crime and the effectiveness of that protection, particularly in Port-au-Prince, Cap-Haïtien, Jérémie, Les Cayes and Gonaïves... Immigration and Refugee Board of Canada. June 17, 2019. HTI106306.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-26744 MB9-26745 RAD.25.02 (January 2020) Disponible en français 6 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 (January 2020) Disponible en français