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2019 RLLR 3

Citation: 2019 RLLR 3
Tribunal: Refugee Protection Division
Date of Decision: September 10, 2019
Panel: Me Jean-Guy Jam
Counsel for the claimant(s): Patrizia Ruscio
Country: Haiti
RPD Number: MB7-18354
Associated RPD Numbers: N/A
ATIP Number: A-2020-01124
ATIP Pages: 000025-000032


REASONS FOR DECISION

INTRODUCTION

[1]       The claimant, [XXX], is a citizen of Haiti. He is claiming refugee protection under section 961 and subsection 97(1)2 of the Immigration and Refugee Protection Act (hereinafter IRPA).

ALLEGED FACTS

[2]       The claimant was born on [XXX], 1980, and is from [XXX]. His father has lived in the United States for several decades. On [XXX], 1993, one of the claimant’s neighbours was killed by armed criminals. On [XXX], 1993, the claimant was caught up in an altercation between protesters and police officers during a pro-Lavalas protest. On that day, when he was 12 years old, the claimant boarded a boat to the United States and on [XXX], he arrived there. Once in the United States, his father only registered him for school. Later, the claimant obtained “Temporary Protected Status” (hereinafter: TPS).

[3]       In 2014 and 2016, the claimant went to Haiti. In [XXX] 2016, the claimant went to see property that his father had purchased several years earlier, but the claimant discovered that the person who had sold his father the land had resold it to a third party.

[4]       When the claimant went to see the property, he was seen by the person who had sold it to his father, and that person thought the claimant was there to take the land back.

[5]       After that, the seller, not wanting to give the land back, hired two individuals to kill the claimant. However, this attempted murder failed because a conflict broke out between the two individuals. Having been informed of this, the claimant, fearing for his safety, quickly returned to the United States, where he continued to live under TPS.

[6]       After Donald Trump became president of the United States, the claimant received a notice from the American government3 on [XXX], 2017, that his TPS would be extended for six months and that he would then have to return to Haiti.

[7]       Accordingly, fearing that he would be deported, the claimant left the United States on [XXX], 2017, to come to Canada. He arrived that same day and claimed Canada’s protection.

[8]       These are, in essence, the facts alleged by the claimant in support of his refugee protection claim.

DETERMINATION

[9]       The claimant is not a “Convention refugee” under section 96 of the IRPA, but he is a “person in need of protection” under subsection 97(1) of the IRPA.

ANALYSIS

Identity

[10]     The panel is satisfied as to the claimant’s identity, which was established through the documentary evidence on the record, including a certified true copy of his passport, the original of which was seized by Immigration, Refugees and Citizenship Canada.4

Section 96 of the IRPA

[11]     Firstly, the panel must determine whether the claimant’s situation has a nexus to any of the five Convention grounds, since the claimant stated that he fears people he described as [translation] “criminals.”

[12]     In this regard, the Federal Court in Ward5 indicates that victims of crime [translation] “do not meet the criteria for establishing the existence of a particular social group.”

[13]     Consequently, the claimant’s refugee protection claim is rejected under section 96 of the IRPA.

Paragraph 97(1)(a) of the IRPA

[14]     The panel finds that the claimant has not satisfactorily established that the agent of persecution is the state, since the claimant never alleged a fear of his country’s authorities or the Haitian police, but rather of criminals.

[15]     Consequently, the panel must determine that the claimant’s refugee protection claim is rejected under paragraph 97(1)(a) of the IRPA.

Paragraph 97(1)(b) of the IRPA

[16]     Now, would the claimant be subjected “to a risk to their life or to a risk of cruel and unusual treatment or punishment”?

Credibility

[17]     With regard to the claimant’s credibility, having heard his testimony and analyzed all the evidence on the record, the panel is prepared to give him the benefit of the doubt with respect to the truthfulness of the facts he alleges in support of his refugee protection claim.

[18]     He responded spontaneously and without exaggeration to the questions put to him by his counsel and the panel. The panel noted no contradiction, implausibility or omission of important facts that would undermine the claimant’s overall credibility. This was despite the panel’s certain reservations regarding the explanations provided by the claimant when he was questioned as to why he had not claimed protection in Canada upon his arrival. However, the panel does not find this fatal in the claimant’s specific case given the overall credibility of his testimony.

[19]     With regard to the application of the definition of “person in need of protection,” there is every reason to believe that the claimant has discharged his burden of proof. In fact, the panel finds that, in his particular case, the claimant is right to fear for his life if he were to return to Haiti.

[20]     Moreover, in making this determination, the panel considered not only the claimant’s testimony and the evidence he filed in support of his refugee protection claim, but also the extensive documentary evidence from independent and reliable sources on the situation in Haiti.

[21]     In fact, the documentary evidence states:

In correspondence sent to the Research Directorate, an official from the National Human Rights Defense Network (Réseau national de défense des droits humains, RNDDH) [4] stated that acts of revenge are generally motivated by political rivalries, the settling of scores, or romantic relationships (RNDDH 8 June 2018). … According to the RNDDH, [translation] “acts of revenge can be targeted or indirect. The idea is to send a message” (RNDDH June 8 2018). Sources stated that those targeted by acts of revenge are either people who have done something wrong in the eyes of the assailant or those close to them (Défenseurs Plus 7 June 2018; Assistant Professor I June 201 8).6 [Emphasis added]

[22]     The documentary evidence also states:

OFPRA adds that [translation] “under these conditions, land ownership disputes are frequently being resolved with weapons, rather than being brought before a judge. An owner of a disputed property may turn to people who have weapons” (France 15 Sept. 2017, 27).7

State protection

[23]     The panel finds that the claimant, in his particular case, cannot expect to obtain the protection of the Haitian authorities. In fact, the extensive documentary evidence from independent and reliable sources states:

However, the RNDDH states that [translation] “the police system is overwhelmed by the insecurity” in the country (RNDDH 3 May 2019, para. 51). In the same vein, the Assistant Professor writes that the PNH “continues to struggle to protect the population from both organized and informal criminals,” and added that, since MINUSTAH’s departure, the PNH has been unable to fully assume its responsibilities (Assistant Professor 20 May 2019). According to the RNDDH, police officers themselves are targeted by criminals, noting that 15 police officers were killed between January and April 2019 (RNDDH 3 May 2019, paras. 2-4). According to the Assistant Professor, police officers do not take initiative in crime prevention and “rarely” conduct criminal investigations (Assistant Professor 20 May 2019). The same source adds that the police “do not feel they have the expertise to investigate crimes or interact with victims or criminals” (Assistant Professor 20 May 2019). In the same vein, the RNDDH representative stated that [translation] “[f]ew police operations are carried out. They are inconclusive. The individuals arrested are generally not involved in the crimes” (RNDDH 17 May 2019). The RNDDH report adds that [translation] “the rare efforts [made by the PNH] to arrest armed criminals mean that, in the majority of cases, the criminals are unconcerned about the courts” (RNDDH 3 May 2019, para. 51).8 [Emphasis added]

Internal flight alternative

[24]     When questioned about an internal flight alternative (IFA) in Jérémie, the claimant stated that it was not feasible, since nowhere in Haiti was safe, implying that he would be found by the person who had sold the land to his father.

[25]     That said, the panel considers that, in the claimant’s particular case, an IFA is not feasible. Moreover, the documentary evidence states the following:

The Chancellor stated that the main way of tracking victims down was “individual networks” (Chancellor 18 June 2018). According to The Assistant Professor, rumours are rife in Haiti and are an effective way of locating people because “Haitians tend to be geographically tied to a small area and so anyone outside of their [usual] circle will be quickly recognized” (Assistant Professor 1 June 201 8).9 [Emphasis added]

[26]     In addition, the same documentary evidence from reliable and trustworthy sources also states:

… The same source indicated that she had experienced this reality when she was trying to find former participants in a study while doing field research, asking neighbours where the former participants were was generally enough to locate them (Assistant Professor 1 June 2018).10

[27]     After analyzing all the evidence on the record, the panel is not satisfied, on a balance of probabilities, that the claimant would not be running a serious risk of persecution if he had to avail himself of an IFA in his country of origin. Moreover, the panel finds that the claimant’s particular situation is such that it would be unreasonable for him to seek refuge in another part of the country.

CONCLUSION

[28]     After analyzing the testimonial and documentary evidence, the panel determines that the claimant [XXX], is not a “Convention refugee” under section 96 of the IRPA, but is a “person in need of protection” under subsection 97(1) of the IRPA.

[29]     Consequently, the panel allows his refugee protection claim.

(signed)           Jean-Guy Jam

September 10, 2019

1 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article I of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
Document 5 – Exhibit C-3: Form I-797C, Notice of Action.
4 Document 1 – Information package provided by the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada: Passport.
5  Canada (Attorney General) v. Ward, [1993] 2 SCR 689.
6  Document 3 – National Documentation Package on Haiti (NDP Haiti), June 28, 2019, Tab 7.6: Response to Information Request, HTI106117.FE, Immigration and Refugee Board of Canada, July 3, 2018.
7 Document 3 – NDP Haiti, Tab 7.1: Response to Information Request, HTI106116.FE, Immigration and Refugee Board of Canada, June 19, 2018.
8 Document 3 – NDP Haiti, Tab I 0.2: Response to Information Request, HTI 106306.FE, Immigration and Refugee Board of Canada, June 17, 2019.
9  Supra, footnote 6.
10 Idem.