MB9-00409

RAD File No. / No de dossier de la SAR : MB9-00409 MB9-00410 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision July 28, 2020 Date de la décision Panel Anne Revil Tribunal Counsel for the persons who are the subject of the appeal Me Gisela G Barraza 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 OVERVIEW [1] XXXX XXXX XXXX is a citizen of Haiti, and her minor daughter, XXXX XXXX, is a citizen of the United States.1 [2] Ms. XXXX left Haiti in XXXX 2009 for the United States, where her daughter was born in 2011. [3] Fearing that her Temporary Protected Status in the United States would not be renewed, Ms. XXXX decided to leave for Canada. She arrived there with her daughter on XXXX XXXX, 2017, and they claimed refugee protection. [4] In support of her claim, Ms. XXXX stated that her uncle believed she had money and he wanted her to give some of it to him. He allegedly threatened to kill her in XXXX 2009, which forced her to leave her country. She returned on XXXX XXXX, 2016, to visit her family and was then beaten and raped by her uncle along with other individuals on XXXX XXXX, 2016. She returned to the United States on XXXX XXXX, 2016. [5] In a decision dated November 26, 2018, the Refugee Appeal Division (RAD) dismissed their refugee protection claim on the grounds that their allegations were not credible. [6] They are appealing that decision and argue that: * The Refugee Protection Division (RPD) did not apply the presumption of credibility to Ms. XXXX testimony. * The RPD placed too much emphasis on the details omitted from her account regarding the rape in 2009. * The RPD did not consider that female victims of rape have difficulty speaking about their assault, which explains why this [translation] "detail" was omitted from her account. * The RPD erred in finding that her credibility was undermined because her sister's letter lacked detail. * Her profile is that of a single and vulnerable woman and she does not have the means to protect herself against her uncle if she were to return to Haiti. [7] The determinative issues are therefore the following: * Are Ms. XXXX allegations regarding the events of XXXX 2009 and XXXX 2016 credible? * As a woman, does Ms. XXXX face a risk of persecution in Haiti? * Did XXXX XXXX establish that she would face a serious possibility of persecution or, on a balance of probabilities, be subjected to a risk to her life or to a risk of cruel and unusual treatment or punishment if she returned to the United States? DETERMINATION [8] The RAD dismisses the appeal. The RPD correctly determined that the appellants are neither Convention refugees nor persons in need of protection. REASONS [9] The RAD conducted its own analysis of the record and evidence, listened to the recording of the hearing before the RPD, and applied the standard of correctness. [10] The RAD considered Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. MS. XXXX APPEAL [11] Ms. XXXX stated that she fears being beaten or raped by her uncle and his associates if she returned to Haiti, but also being raped as a woman in Haiti. The presumption of truthfulness of a refugee protection claimant's testimony [12] The allegations of a refugee protection claimant are presumed to be true unless there are valid reasons to doubt their truthfulness. However, the RAD identified omissions, including a determinative omission, that justify the RPD's doubt about Ms. XXXX testimony and the decision rendered. [13] These points will be addressed below. The events of XXXX 2009 and XXXX 2016 [14] Ms. XXXX bases her allegations about fearing her uncle and his associates on the events of XXXX 2009 and XXXX 2016. [15] Ms. XXXX signed her Basis of Claim Form (BOC Form) on August 31, 2017, and provided the RPD an amended account on November 2, 2018, which was dated the same day. [16] In her BOC Form, she explains that she received death threats in XXXX 2009, and that she was beaten and raped on XXXX XXXX XXXX 2016. [17] In her amended account, she provided reasons why her uncle went after her, namely because he was jealous about an inheritance, and explained that he had gone to her store and threatened to kill her, at which point she realized that she had to leave the country to save her life, which is what she did in XXXX 2009. She returned to Haiti on XXXX XXXX, 2016, believing that her uncle had forgotten about her. But on the night of XXXX XXXX XXXX XXXX XXXX 2016, he and other armed individuals wearing hoods went to her sister's home where she was staying. They beat and raped her, and took her money. She returned to the United States on XXXX XXXX, 2016. [18] At the hearing, she mentioned for the first time that she had been raped during the events of XXXX 2019. Her uncle arrived with other men. She was raped by two men and beaten by two others in the back of her store. She later added at the hearing that her sister had been alerted and went to join her at the store, and she saw the state she was in after the assault. Omission of the XXXX 2009 rape in the BOC Form and the amended account The RPD did not err in drawing a negative finding on the rape being omitted in the BOC Form and the amended account [19] In this case, the rape allegedly occurred in XXXX 2009. Ms. XXXX did not mention it in the form provided in support of her refugee protection claim in August 2017, or in her amended account in November 2018. [20] At the hearing, she explained that the omission in the BOC Form was due to stress because she had to quickly write her account. With respect to the omission in the amended account, which was written after she met her legal counsel, she explained that she considered the account to be a summary, and that since she had written about being beaten and raped, she believed questions would be put forward to her. [21] The explanation that she was stressed and did not have much time to complete her BOC Form is rather unconvincing in that she made sure to indicate details that were less central to her refugee protection claim than the alleged rape. She specified that her uncle had told her before she left in XXXX 2009 that he would come [translation] "with his group to take the money I was using to act like a SUPERSTAR: he accused me of selling the family land. He demanded his share of the money. I knew he could come to my home to kill me. That was the trend-going to people's homes to kill them. I was scared. I left to save my life." [22] These details are less significant in terms of the alleged fear than the fact that she was allegedly raped by her uncle, and it would have been expected that she mention the rape instead of these details. [23] Ms. XXXX amended account, which was written when she had a legal counsel, is more detailed than her initial account since it specifies that she had business selling goods which enabled her to take care of her children. She also specifies that her uncle believed she had stolen the inheritance of her father, who died when she was 15 years old. She describes the encounter with her uncle in XXXX 2009 in the same manner as in her BOC Form, namely that her uncle had threatened to kill her and that she realized she had to leave the country to protect herself. [24] Although this account is more detailed, it makes no mention of the alleged rape by her uncle in XXXX 2009, even though events of such a serious nature are more likely to justify her alleged fear of her uncle than the death threats she describes. [25] The RAD notes that it is aware that female victims of sexual violence may have difficulty in providing testimony relating to their assault, and it considered Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, particularly part D: "Women refugee claimants face special problems in demonstrating that their claims are credible and trustworthy." [26] It must consider this potential difficulty when assessing the appellant's credibility. [27] The RAD also took into account the "doctrine of recent complaint."2 [28] However, the RAD notes that when Ms. XXXX was asked about this omission, she did not state that she was unable to mention the rape when preparing these documents. Neither did she mention that she had such a hard time talking about it during the hearing. [29] More importantly, it is worth noting that in these two documents, she was able to mention the alleged rape of XXXX 2016 and that she therefore did not omit it. Consequently, the fact that these incidents of XXXX 2009 were omitted cannot be explained by Ms. XXXX difficulty in discussing them, especially since she made no mention of having any particular difficulty. [30] Ms. XXXX explanations regarding the alleged rape in XXXX 2009 are hardly credible. [31] The fact that these incidents were omitted in her BOC Form and her amended account, even though they are central to her alleged fear of her uncle and his associates, considerably undermines the credibility of Ms. XXXX allegations about the events of 2009. It also undermines the credibility of her allegations regarding the events of 2016 for the following reasons. [32] Ms. XXXX bases her alleged fear of her uncle and his associates on these two events: an initial rape, which was followed by a second rape during a visit to Haiti. These sexual assaults were both linked to her uncle's jealousy and were committed by her uncle's associates in his presence. These events are similar and her explanations regarding the omission of the first incident are not conclusive. [33] The fact that she did not mention the alleged rape of 2009 in her BOC Form and in her amended account, taking into account the circumstances of this omission outlined in the previous paragraphs, considerably undermines the credibility of her allegations regarding the incidents of 2009 and 2016. Omission of the threats of retaliation if she filed a complaint The RPD did not err in drawing a negative finding on the omission of threats of retaliation [34] At the hearing, Ms. XXXX stated that while leaving her shop after the events of XXXX 2009, her uncle had told her not to speak to her family, or else she could forget about them. [35] When asked why this threat of retaliation was omitted from the BOC Form and the amended account, she stated that she did not mention it because she believed these accounts were summaries. [36] The RAD notes that the threat of retaliation is a factor that supports her refugee protection claim for which these documents were filled out, and that it is therefore surprising that she did not mention it. This is all the more surprising because she made a point of including more anecdotal details in both documents, such as the fact that her uncle had told her that she was acting like a [translation] "superstar." [37] While this omission is not in itself determinative, it does undermine the credibility of Ms. XXXX allegations regarding the events of 2009. Letter from Ms. XXXX sister The RPD erred in finding that this document undermined Ms. XXXX credibility [38] First, the RAD notes that the appellant is not contesting the RPD's conclusion that the letter lacked detail, but rather its finding that this lack of detail undermines the credibility of her allegations. [39] In this letter, Ms. XXXX sister indicates that she had witnessed the difficult situation she experienced in early 2009, but she does not provide any details. She specifies that her sister [translation] "faced murder attempts from her uncle" and that in this context, she had no other choice but to leave Haiti in XXXX 2009. [40] It was noted that the period of the events mentioned by Ms. XXXX sister (early 2009) does not correspond with the events reported by the appellant (XXXX 2009) and that the appellant described only an assault and not [translation] "murder attempts." [41] Most importantly, this letter does not include any details regarding the alleged assault against Ms. XXXX in XXXX 2009, even though she stated that her sister had found her in the back of her store after the assault and saw the state she was in. [42] Furthermore, this letter makes no mention whatsoever of the assault that took place the night of XXXX XXXX XXXX XXXX, 2016, in the letter writer's home and presence. [43] While this letter corroborates the fact that the appellant had problems with her uncle in 2009, since it does not include any details on the assaults of 2009 and 2016, the RAD is of the opinion that it does not offset the credibility issues (outlined above) regarding Ms. XXXX testimony. [44] The appellant justifies the letter's lack of detail by the fact that she had told her sister that she did not have to include everything, that she only had to mention the first incident and that she herself would answer the questions. [45] The RAD is surprised that Ms. XXXX sister did not provide more details on events she had allegedly witnessed. In light of this lack of detail, this document does not have any probative value. However, it cannot result in a negative finding on Ms. XXXX credibility as she did not write the document and it does not directly contradict her testimony. [46] The RPD therefore erred in finding that this document undermined Ms. XXXX credibility. Conditions of the departure from Haiti in 2016 The RPD correctly noted that Ms. XXXX provided inconsistent explanations regarding the date of her departure in XXXX 2016 [47] The appellants are not contesting the RPD's conclusion that Ms. XXXX gave inconsistent testimony regarding her trip to Haiti in XXXX 2016. She testified that she had travelled to Haiti by airplane on XXXX XXXX XXXX 2016, with the intention of staying for XXXX weeks. However, she claims that she left urgently on XXXX XXXX, 2016, after her assault using the return ticket she had initially purchased. When asked whether this ticket had therefore been scheduled for only XXXX XXXX after the arrival and not XXXX, she stated that she had purchased a ticked for XXXX XXXX XXXX XXXX, 2016, but that in her mind, she wanted to spend XXXX weeks in Haiti. [48] She is therefore inconsistent on the duration of her intended stay in Haiti. [49] This inconsistency, per se not determinative, undermines her credibility regarding her date of departure-rushed or otherwise. Since she explains that she hastened her departure on account of the assault of XXXX XXXX XXXX XXXX XXXX 2016, the inconsistency regarding her departure date reflects on the cause for her departure, namely the alleged assault, and undermines her credibility regarding this incident. Conclusion on the allegations against her uncle and his associates [50] All of the omissions and inconsistencies mean that, on a balance of probabilities, Ms. XXXX allegations about the events of XXXX 2009 and XXXX 2016 are not credible. [51] Consequently, she failed to establish that, on a balance of probabilities, she would be personally subjected to one of the risks set forth in section 97 of the Immigration and Refugee Protection Act (IRPA) from her uncle or his associates if she returned to Haiti, or to a serious possibility of persecution from these same individuals. Risk of persecution as a woman [52] The RAD shares the RPD's view that it has not been demonstrated that Ms. XXXX would face a serious possibility of persecution from individuals other than her uncle and his associates by reason of her membership in a particular social group of women, for the following reasons. [53] First, it was noted that this allegation is not central to Ms. XXXX claim, who indicates that she fears being killed or raped by her uncle and his associates on account of family jealousy. She indicates only at the end of her memorandum of appeal that she would not be able to protect herself if she returned to Haiti and her uncle were still looking for her. [54] It is worth examining Ms. XXXX risk of persecution by individuals other than her uncle and his associates simply as a single woman in Haiti. [55] The documentary evidence establishes that sexual violence against women is unfortunately widespread in Haiti, even through [translation] "the lack of reliable and national statistical data continues to make it impossible to accurately assess the phenomenon."3 [56] Federal Court jurisprudence has indicated that4 "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 which is sufficiently serious and whose occurrence is more than a mere possibility." [57] In addition, the case law recalls the importance of considering the personal situation of each woman, her current or future living conditions and her family context.5 [58] The documentation indicates that the women and girls who are at greatest risk are those who are the most vulnerable and who are living in displaced persons camps, and that most victims of sexual and gender-based violence are young girls and young women. [59] A recent document also revealed6 that sexual violence "affects women who are separated (21 percent) or in non-cohabiting relationships (18 percent) more than those who are in a relationship (15 percent) or who are single (7 percent) (IHE and ICF July 2018, 392). The rate of violence decreases with an increased level of education (15 percent among women with no education compared with 11 percent among those who have completed high school) (IHE and ICF July 2018, 392)." The same document goes on to say that "[t]he survey data shows that in 58 percent of cases, the perpetrator of the violence is the victim's current husband or partner, and in 37 percent of cases, it is the former husband or partner; among victims who are single, in 34 percent of cases it is a boyfriend, in 20 percent of cases it is a friend of the family and in 17 percent of cases it is an unknown individual." [60] The RAD is of the view that it cannot be inferred from the documentary evidence, including that cited by the appellants, that all Haitian women face a serious possibility of persecution as women. The risk to which the appellants would be subjected must therefore be analyzed by comparing their profile with that of women who are at greatest risk of sexual violence, according to the evidence discussed above. [61] Ms. XXXX is a single mother. She studied to become an XXXX in the United States and worked in that field. [62] She stated that she was in regular contact with her sister, who lives alone in Haiti and is raising Ms. XXXX first two children. She would therefore not be isolated if she were to return, and she would be in contact with her sister, whose profile resembles her own. [63] As such, her profile as an educated woman and single mother with family in Haiti along with family support does not correspond to that of women who are at greatest risk of sexual violence, according to the evidence cited at paragraph 58. [64] It has therefore not been established that she would face a serious possibility of being a victim of sexual violence if she returned to her country or that she would face a serious possibility of persecution. XXXX XXXX APPEAL [65] The RAD notes that the appellants did not state how the RPD allegedly erred in its determination regarding the minor child, XXXX XXXX. [66] After examining the record, the RAD does not note any errors committed by the RPD in its analysis and determination regarding this appellant. FINAL CONCLUSION [67] The RPD's decision is correct. [68] Pursuant to paragraph 111 (1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD, namely, that XXXX XXXX XXXX and XXXX XXXX are neither Convention refugees nor persons in need of protection under sections 96 and 97 of the IRPA. (Signed) Anne Revil Anne Revil July 28, 2020 Date IRB translation Original language: French 1 Ms. XXXX is her daughter's designated representative before the Refugee Appeal Division (RAD). 2 Velasco Chavarro 2020 FC 310. 3 National Documentation Package (NDP) on Haiti, September 30, 2019, Tab 5.12: Haiti: Les violences faites aux femmes [violence against women]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. January 9, 2017. P.5. 4 Dezameau, Elmancia v. M.C.I. (F.C., No. IMM-4396-09), Pinard, May 27, 2010; 2010 FC 559. 5 Josile, Duleine v. Canada (Citizenship and Immigration) 2011 FC 39. 6 NDP on Haiti, September 30, 2019, Tab 5.3: Violence, including sexual violence, against women; state protection and support services (2017-June 2019). Immigration and Refugee Board of Canada. June 14, 2019. HTI106291.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-00409 MB9-00410 RAD.25.02 (January 2020) Disponible en français 10 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