MC0-06138

RAD File No. / No de dossier de la SAR : MC0-06138 MC0-06139 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel entendu à Date of decision January 27, 2021 Date de la décision Panel Guerlain Guerrier Tribunal Counsel for the persons who are the subject of the appeal Jamal Addine Fraygui Conseil de la personne en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX, is a citizen of Haiti. Her son and associate appellant, XXXX XXXX XXXX, is a citizen of the United States. [2] The appellant alleges that she is bisexual. She fears being killed by her child's father, XXXX XXXX, who caught her with her lover. She also fears persecution in Haiti due to her sexual orientation. The minor child, XXXX XXXX XXXX, did not allege a fear in his country of citizenship. [3] The Refugee Protection Division (RPD) found that the appellant was not credible and that she did not establish her sexual orientation. As for the minor child, XXXX XXXX XXXX, the RPD determined that he had not established a fear in his country of nationality, the United States. [4] In her memorandum, the appellant submits that the RPD erred in its assessment of her credibility and that it failed to adequately apply Guidelines 4 and 9. In addition, according to the appellant, the RPD erred in its assessment of her residual profile. [5] The determinative issue for the Refugee Appeal Division (RAD) is credibility. DETERMINATION [6] I dismiss the appeal. The RPD was correct in determining that the appellants are neither Convention refugees nor persons in need of protection. [7] In my analysis, I considered Immigration and Refugee Board of Canada Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution and Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression.1 ROLE OF THE REFUGEE APPEAL DIVISION [8] The RAD is required to review the RPD's decision and conduct its own analysis based on all the evidence on the record to determine, in light of the arguments raised by the appellant, whether or not the RPD erred. The applicable standard of review in this case is the standard of correctness. ANALYSIS The relationship between the appellant and XXXX has not been established [9] The RPD did not believe that the appellant and XXXX had a romantic relationship. According to the RPD, the appellant's testimony was general and lacked spontaneity. The appellant summarily described what she liked about her lover. No shared activity or interest is described, apart from their sexual relations, and conversation topics and the sharing of ideas are limited and contain no details. [10] The appellant submits that she spontaneously and credibly described what she finds attractive about her partner. The fact that the RPD judged her criteria to be superficial does not demonstrate that the relationship did not exist. The RPD should have considered that the appellant comes form a different culture and that she was embarrassed to talk freely about a private matter. Since her relationship with XXXX was secret, one can understand that they were not free engage in activities together in the Haitian social context. Especially since the appellant had a child and had been sharing her life with a man since XXXX 2016. [11] I do not accept those arguments. The appellant showed no sign of embarrassment when broaching private matters. When the RPD asked her an open question about her relationship with XXXX, she first spoke about her partner's body and the sexual attraction she felt for her. The appellant's testimony is not credible. What undermines her credibility is her inability to give a substantive account of her relationship with XXXX. [12] The questions about conversation topics and shared activities gave the appellant just many opportunities to describe her relationship with XXXX in concrete terms; however, her responses remained short and vague. In my opinion, the RPD's open questions allowed the appellant to provide a comprehensive account of all aspects of her alleged relationship with her partner with a view to establishing its existence, but she did not do so. [13] Furthermore, the argument that the appellant could not engage in activities with XXXX because she was in a relationship with XXXX XXXX or because she had a child is not satisfactory. I note that, according to the appellant, the women had known each other for a long time; they went to school together. Their romantic relationship came several years before the appellant's relationship with XXXX XXXX and the birth of her child. As for the Haitian social context, the appellant claims, without demonstrating it, that the hostility against members of the LGBT community did not allow her to engage in activities with her lover. While this hostility undeniably exists, a certain gender segregation is the norm in more traditional societies. It is not rare for women to engage in activities amongst themselves. Public displays of affection are certainly ill-advised, but the appellant did not establish that activities among women are forbidden or frowned upon in Haitian society. [14] I draw a negative inference as to the appellant's credibility due to her inability to provide a specific and detailed account of her intimate relationship with XXXX. In my view, the appellant failed to establish a romantic relationship with XXXX. The RPD's conclusion is correct. [15] That said, contrary to the RPD, I do not draw a negative inference from the appellant's failure to mention any specific topic, whether it be armed aggression by XXXX XXXX, the stay in the United States or her child. In my view, there was no pre-established series of topics that the appellant had to address. A spontaneous and detailed account of her shared life with XXXX would have sufficed. What is determinative for the RAD is the lack of substance in the appellant's testimony. The failure to apply for asylum in the United States and the return to Haiti undermine the appellant's credibility [16] According to the appellant's testimony, people in the neighbourhood accused her of being a lesbian. Based on this rumour, XXXX XXXX allegedly threatened her with a weapon. According to the appellant, homosexuals are in danger in Haiti. Yet she did not try to seek asylum during the nine months she spent in the United States. [17] The RPD found that the failure to seek asylum in the United States undermined the appellant's credibility. The panel concluded that her behaviour did not demonstrate an actual subjective fear and [translation] "cast a doubt on the truthfulness of her allegations." [18] When confronted with this fact by the RPD, the appellant answered that she went to the United States to make purchases, but that she had never intended to stay there. The appellant added that it was not easy to apply for asylum and that she had a job in Haiti. [19] In her memorandum, the appellant explains that she denied being a lesbian when XXXX XXXX threatened her with a weapon. He therefore had no proof of her sexual orientation. This lack of concrete evidence-the appellant seems to suggest-means that she did not fear returning to her country. [20] I do not accept this explanation. XXXX XXXX assault on the appellant was an extremely violent and impulsive act. I note that the XXXX XXXX alleged act led to the couple's separation. The appellant did not see him again after that. When she was in the United States, the appellant had no reason to believe that he was more favourably disposed toward her. In addition, according to the appellant's account, she was henceforth labelled as a lesbian in the community. Since her sexual orientation was no longer a secret, the alleged danger became real. The appellant had serious grounds to apply for asylum on her arrival in the United States in XXXX 2018. The social risk and the risk represented by XXXX XXXX already existed. [21] The appellant further submits that she did not know that she could apply for asylum in the United States. In my view, this assertion is not credible. The appellant is a university XXXX XXXX. She frequently travelled outside her country. She had a multiple-entry visa for the United States and stayed there for several months with Haitians from the diaspora. Moreover, the appellant did not spontaneously state during the hearing before the RPD that she did not know it was possible to apply for asylum in the United States; rather, she stated that she had not intended to stay there. Based on the appellant's profile, I am of the opinion that she knew it was possible to apply for asylum in the United States. In the alternative, I am of the opinion that the failure to enquire with the American authorities or the people around her about how to protect her life and that of her newborn baby is inconsistent with the alleged fear. [22] The failure to enquire about asylum and the return to Haiti significantly undermine the appellant's credibility. This points to a lack of subjective fear on the part of the appellant. In my view, the appellant is not generally credible. I conclude, on the balance of probabilities, that the appellant did not have the reputation of being a lesbian in the neighbourhood and that XXXX XXXX alleged assault against the appellant in early 2018 did not happen. [23] The RPD's conclusion is correct. The documentary evidence is not sufficient to offset the appellant's undermined credibility [24] The evidence submitted by the appellant is not sufficiently credible or reliable to support a finding of a well-founded fear of persecution. In her memorandum, the appellant refers to the following documents: - Exhibit P-2 is a letter from a friend of the appellant who allegedly housed her on XXXX XXXX XXXX 2019; - Exhibit P-3 is a letter from the appellant's uncle who allegedly paid for her airplane ticket to the United States; - Exhibit P-5 consists of two photos of XXXX; - Exhibit P-7 is a letter from XXXX; [25] The RPD gave no probative value to exhibits P-2 and P-3, as they are each accompanied by an unsigned taxpayer identification card. It accorded no weight to the photos of XXXX, as they do not establish the appellant's allegations about her sexual orientation. Lastly, the RPD gave no probative value to XXXX letter (P-7) because her first name is written with two n's on the national identity car that accompanies it. [26] The appellant submits that exhibits P-2, P-3, P-5 and P-7 corroborate some of her allegations, without specifying which ones. She did not make any reference to the missing signatures on the taxpayer identification cards accompanying exhibits P-2 and P-3 or to XXXX first name being spelled differently on the identification card than on the letter. [27] I note that the appellant does not contest the RPD's conclusions regarding the issues related to the identification accompanying exhibits P-2, P-3 and P-7. The lack of signatures significantly reduces the weight I accord to exhibits P-2 and P-3. The problem with Exhibit P-7 is even more serious and is unexplained by the appellant. It would seem that XXXX herself made a mistake by writing out her first name, as the spelling of XXXX in Exhibit P-7 differs from that on the national identity card. [28] Even if I gave them weight, letters P-2 and P-3 corroborate only the allegation of a dispute between the appellant and the father of her child. They make no reference to the armed assault, the cohabitation or the neighbourhood rumour of the appellant's sexual orientation. Yet these are the appellant's principal allegations, which I found to be not credible. [29] The appellant also submits a translation (P-9) of Exhibit P-8, which was already on the record. These are messages exchanged between one XXXX and another, unidentified person. The messages, whose meaning is obscure, do not establish the appellant's allegations. [30] I do not gave any weight to these exhibits, especially because of the appellant's overall lack of credibility. In my opinion, these documents, which contains gaps as to their origin, are insufficient to establish the appellant's allegations. The RPD did not err by not lending any weight to exhibits P-2, P-3, P-5 and P-7. The failure to include the common-law relationship between the appellant and XXXX XXXX in the forms is not relevant [31] I agree with the appellant's argument that this was an honest mistake. She was not trying to conceal her relationship with XXXX XXXX. The allegation that she lived with XXXX XXXX was included in her written account. Therefore, this is not an omission. In my opinion, the RPD erred by drawing a negative inference from the mere fact that a question was not correctly completed on the form. In my view, this is a peripheral issue. Risk related to being a Haitian woman [32] I disagree with the appellant's arguments concerning the risk she would face should she return to Haiti. [33] The appellant submits that she would be at risk in Haiti because, contrary to the RPD's conclusion, she could not live with her family, but would face a similar situation to that of women who live without support and without family. [34] The appellant explains that, after the incident of XXXX XXXX XXXX 2019, the neighbours were allegedly apprised of her sexual orientation. She therefore could not return to live with her mother. I do not accept this argument. According to the appellant's written account, the neighbours themselves allegedly informed XXXX XXXX of her sexual orientation as early as 2018. Furthermore, after the neighbours accused the appellant of being a lesbian at the start of her pregnancy in 2018, she continued to live with her mother in the same house. Alternatively, the appellant does not explain why she could not live with her mother in another neighbourhood. [35] The appellant also submits that her brother [translation] "is likely" to reject her in light of the current context in Haiti. I believe she wants to say that he is likely to reject her because of her sexual orientation. I reject this argument, as is it speculative. The appellant failed to establish that her brother would be hostile toward her if she returned to Haiti or that he would yield to social pressure. More importantly, she failed to establish the allegation concerning her sexual orientation. [36] When I analyze the appellant's profile, I note that she has completed post-secondary studies. She has solid experience on the job market. She has been able to provide for herself in the past. She has close family and friends in Haiti, where she has lived most of her life. [37] The appellant did not establish that she has a profile that would subject her to a serious possibility of persecution by reason of her gender if she were to return to Haiti. [38] The RPD's conclusion is correct. The RPD applied the Chairperson Guidelines [39] The appellant claims that the RPD failed to demonstrate in its decision that it applied the Gender Guidelines. Yet the appellant did not identify any specific omission by the RPD. I conducted my own review of the evidence and did not find any flaws in the application of the Chairperson Guidelines in this case. The minor child, XXXX XXXX XXXX [40] XXXX XXXX XXXX is a minor child and a citizen of the United States. His refugee protection claim is based on the appellant's claim. He is not alleging a fear in his country of citizenship. His refugee protection claim was rejected by the RPD. He is not contesting that determination. The RAD concludes that there is no risk for the appellant in the United States under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). DETERMINATION [41] I dismiss the appeal. The RPD was correct in determining that the appellants are neither Convention refugees nor persons in need of protection. (signed) Guerlain Guerrier Guerlain Guerrier January 27, 2021 Date IRB translation Original language: French 1 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Immigration and Refugee Board of Canada. Effective November 13, 1996. Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression. Immigration and Refugee Board of Canada. Effective May 1, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-06138 MC0-06139 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