MB9-10215

RAD File No. / No de dossier de la SAR : MB9-10215 MB9-10216 / MB9-10217 / MB9-10218 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision November 21, 2019 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the persons who are the subject of the appeal Claudette Menghile 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, the principal appellant, and XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX the minor appellants, are citizens of Haiti. The appellant stated that some of her in-laws had threatened to kill her because of her opposition to the practice of voodoo and because she would spend her husband's money, which would leave them with less money to support them financially. In April 2017, some unidentified individuals allegedly entered her home, tied up her husband and tried to rape her. They also allegedly threatened to rape her daughters and stated that this would teach her a lesson for spending her husband's money. Following this incident, the appellants left Haiti for Canada in XXXX 2017. The appellant's husband visited her in Canada to convince her to return to Haiti. The appellant refused and instead made a claim for refugee protection for her and her daughters on October 5, 2017. [2] On April 25, 2019, the Refugee Protection Division (RPD) rejected the claim for refugee protection on the basis that the appellant was not credible. [3] The appellant is appealing the decision. She alleges that the RPD erred in its analysis of her credibility and in concluding that the appellant and her daughters did not have a fear of gender-related persecution. DETERMINATION [4] I am of the opinion that the RPD was correct in rejecting the refugee protection claim. The appeal is dismissed. ANALYSIS [5] I conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, in order to form my own opinion about this refugee protection claim and ensure the implementation of Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution,1 to determine whether the decision rendered by the RPD is correct. The Refugee Protection Division did not err in its assessment of the appellant's credibility Excerpt from the minutes of the registry of the Pétion-Ville peace court [6] The RPD concluded that there was a contradiction between the appellant's testimony and the excerpt from the minutes of the registry of the Pétion-Ville peace court (Exhibit P-2) regarding the incident on April 18-19, 2017, because the minutes do not mention any physical attack on the appellant or her husband. In her memorandum and at the hearing when confronted with this contradiction,2 the appellant stated [translation] "it is understood from a careful reading of the excerpt that the report by the justice of the peace is a material finding. The justice of the peace states in this excerpt that he went to the address of Mr. XXXX to assess the state of the premises following a criminal act." [7] With all due respect, I cannot accept this argument. In reading Exhibit P-2, it must be noted that the report contains material information, but also her husband's statement to the justice of the peace regarding the events of April 18-19, 2017. However, he does not mention any physical attack on the appellant or that he himself was tied up, as the appellant claims in her account. Nor is there any mention in the report of the rape threats allegedly made against the appellant's daughters. [8] I am of the opinion that the RPD did not err. Omission of important information regarding one of the agents of persecution [9] The RPD drew a negative inference from the fact that the appellant had not included in her BOC Form but earlier in her testimony at the hearing, that the individuals who were persecuting her, namely, XXXX and XXXX, her husband's brother and sister, were active throughout Haiti. In her memorandum, the appellant submits that this information was not presented earlier at the hearing because she was not asked about it before. She also submits that [translation] "just because information is not found in the BOC Form does not automatically mean that it is false when a refugee protection claimant states it in testimony." [10] With all due respect, I do not find the appellant's arguments persuasive. To start, during the first part of the hearing, the RPD asked the appellant about XXXX and XXXX several times. The RPD asked her to talk about XXXX and XXXX, what they did and what their activities were. The RPD asked open-ended questions. In her answers, the appellant did not mention that XXXX was the head of a major voodoo group. The RPD confronted the appellant about this significant omission twice. The appellant's response was the same, she did not mention this element earlier because being the leader of a voodoo group [translation] "it is not an activity, it is not a job."3 [11] The onus was on the appellant to state as correctly, completely and truthfully as possible the information in the documents supporting her refugee protection claim. In this case, that one of the agents of persecution is the president of an organization with approximately 60 members,4 which would enable him to find the appellant anywhere in Haiti, is a significant factor in her refugee protection claim that should have been included in her BOC Form. The RPD correctly drew a negative inference from this significant omission. [12] I am of the opinion that the RPD did not err. The situation of the appellant's husband [13] The RPD finds it contradictory that the appellant testified that her husband was not threatened in Haiti, when the alleged attack of April 18 to 19, 2017, indicates otherwise. In her memorandum, the appellant submits that there is no contradiction since her husband [translation] "was not attacked on the night of April 18 to 19, 2017; he was tied up and was not beaten or injured because he is the family provider."5 [14] In the circumstances of this case, I can understand why the appellant submits that being tied up is not the same as being attacked, as she states in her memorandum. The problem is that, at the hearing, the appellant also testified that her husband was in hiding, that he no longer returned home to sleep since the incident on April 18-19, 2017,6 that his life was in danger,7 and that he was afraid, claims that are consistent with the behaviour of a person who fears for his life. [15] I am of the opinion that the appellant's claim that her husband did not feel threatened in Haiti is contradicted by her own testimony at the hearing, indicating that her husband feared for his life. These are two opposing positions and, both at the hearing and in her memorandum, the appellant was unable to reconcile them in a satisfactory manner. [16] I am of the opinion that the RPD did not err in drawing a negative inference from the appellant's contradictory testimony. The inconsistent behaviour of the appellant Failure to claim asylum in the United States of America in 2016 [17] In its decision, the RPD drew a negative inference from the fact that the appellant did not claim asylum in the United States of America in 2016, even though she testified that the persecution was difficult in 2015. The appellant submits that she did not think to claim asylum in the United States in 2016 because the precipitating incident did not occur until after she returned from her trip to the United States. [18] Although the appellant had had problems with her in-laws since 2015, she was clear at the hearing that it was only after the incident on April 18-19, 2017, that she decided to leave Haiti. In addition, when the appellant was confronted by the RPD about her behaviour, she stated that, in 2015, she and her husband thought that the situation with her in-laws would sort itself out.8 [19] The RPD erred, but this is a minor factor that does not bring into doubt the appellant's lack of credibility regarding her fear with respect to the members of her husband's family who want to hurt her. For the reasons stated above, I agree with the RPD's finding that the appellants' account is not credible. The risk based on membership in a particular social group [20] In her memorandum, the appellant submits that the alleged persecution, namely, her attempted rape and the rape threats against her daughters are related to the fact that they are women and that, consequently, they were the victims of gender-based violence. The appellants allege that the RPD erred in conducting a risk analysis based on the situation of generalized violence against Haitian women, when the appellants were specifically targeted and attacked. [21] The RPD did not err in conducting a risk analysis based on the situation of generalized violence against Haitian women. The RPD considered the appellants' personal circumstances to determine the risks based on the alleged attempted rape, an account deemed not credible, and also conducted an analysis of her risk as a woman in Haiti, given the situation of violence against women in Haiti. [22] In my opinion, neither the appellants' testimony nor the BOC Form establishes that they have a fear of gender-related persecution. The evidence on the record and the appellants' submissions instead indicate that the principal appellant's fear is related to her husband's enviable financial position and her in-laws' jealousy. As she explained at the hearing, her in-laws expect her husband to support them and saw her as an obstacle between them and the financial support they expected to receive. These allegations were found not to be credible and no fear other than the one found not to be credible was presented. [23] The RPD asked the appellant several times at the hearing whether she had any fear other than the one alleged in her BOC Form, whether there were reasons other than the problems related to her in-laws. Twice at the end of the hearing, the RPD asked her if there was anything she wanted to add or if she wanted to provide any other information regarding her refugee protection claim.9 At no time during these exchanges did the appellant express a fear of persecution by reason of her gender or by reason of the fact that she and her daughters are Haitian women. [24] The appellant did not dispute the RPD's finding with respect to the risk based on the situation of generalized violence against Haitian women. Having analyzed this issue according to the criteria set out in section 96 of the Immigration and Refugee Protection Act, I am of the opinion that the appellant has not established that she has a well-founded fear of persecution in her country simply because she is a Haitian woman. CONCLUSION [25] The Refugee Appeal Division dismisses the appeal and confirms the determination of the RPD that the appellants are not Convention refugees or persons in need of protection. (signed) "Tammy Tremblay" Me Tammy Tremblay November 21, 2019 Date IRB translation Original language: French 1 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, pursuant to subsection 65(3) of the Immigration Act, November 13, 1996. 2 At 6:00 of the recording of the Refugee Protection Division (RPD) hearing on April 12, 2019. 3 At 2:40 of the recording of the RPD hearing on April 12, 2019. 4 From 2:35 to 2:39 of the recording of the hearing on April 12, 2019. 5 P-2, appellant's record, appellant's memorandum, para. 20, p. 7. 6 At 0:17 of the recording of the RPD hearing on April 12, 2019. 7 At 2:12 of the recording of the RPD hearing on April 12, 2019. 8 At 1:46 of the recording of the RPD hearing on April 12, 2019. 9 From 2:42 to 2:46 of the recording of the RPD hearing on April 12, 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-10215 MB9-10216 / MB9-10217 / MB9-10218 RAD.25.02 (April 4, 2019) Disponible en français 7 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 (April 4, 2019) Disponible en français