Citation: 2019 RLLR 4
Tribunal: Refugee Protection Division
Date of Decision: July 4, 2019
Panel: Nicole Ginsberg
Counsel for the claimant(s): Hubert Guay
Country: Haiti
RPD Number: MB7-18975
Associated RPD Numbers: MB7-19054
ATIP Number: A-2020-01124
ATIP Pages: 000033-000042
REASONS FOR DECISION
INTRODUCTION
[1] The principal claimant, [XXX], and her son, the minor claimant, [XXX], request protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA).1
[2] The principal claimant was appointed as the designated representative for the minor claimant. The claimant submitted into evidence a letter from the father of the minor claimant consenting to the minor claimant being in Canada with the principal claimant.2
[3] The hearing was adjourned for the receipt of certain documents, which the claimant’s counsel submitted following the hearing.3
[4] In its decision, the panel has taken into account Chairperson’s Guidelines number 4 on Women Refugee Claimants Fearing Gender-Related Persecution.4
ALLEGATIONS
[5] The allegations are contained in the claimants’ Basis of Claim (BOC) forms,5 and are summarized as follows:
[6] The principal claimant is a citizen of Haiti. The minor claimant is a citizen of the United States.
[7] The principal claimant alleges that her father, [XXX], is a [XXX], [XXX] and [XXX] activist in Haiti. In particular, he works for the [XXX]-based organization, [XXX], providing [XXX] in Haiti, in order to increase the public’s engagement on [XXX] issues and improve conditions for people living in Haiti.
[8] The principal claimant alleges that, as a result of her father’s work, she and her siblings and her father were subjected to intimidation and violence by those opposed to his work.
[9] In [XXX] 2010, two bandits broke into the principal claimant’s home and beat and sexually assaulted her. The bandits told her that the attack was intended as a message to her father to stop doing his [XXX] work. She did not report the incident to police, and fled to the United States within days of the attack.
[10] The principal claimant lived in the United States, where for a period of time she had temporary protected status. The minor claimant was born in the United States in 2015. His father remains in the United States. On [XXX], 2017, the claimants came to Canada and made their refugee claims.
[11] The principal claimant has another child, born in the United States in 2011, who continues to live in the United States with his father and is not included in this claim.
DETERMINATION
[12] The panel has considered all of the evidence and finds that the principal claimant has established that she faces a serious possibility of persecution in Haiti on the basis of her membership in a particular social group, as a woman fearing gender-related violence in Haiti.
[13] The panel finds that the minor claimant has not established that he faces a serious possibility of persecution in the United States or that, on a balance of probabilities, he faces a danger of torture or a risk to life or a risk of cruel and unusual punishment in the United States.
ANALYSIS
Identity
[14] The claimants’ identities are established on a balance of probabilities by their respective passports, certified copies of which were filed in evidence.6
United States-Born Minor Claimant
[15] The principal claimant did not allege any particular fear for her United States-born son in the United States. She testified that she has no one to care for her son if he was to stay in the United States without her. While the panel acknowledges that family separation is not often a desirable situation, the panel also notes that family separation is not contemplated by either section 96 or subsection 97(1) of the IRPA.7
[16] The panel finds the claimants have not established that the minor claimant faces a serious possibility of persecution in the United States on a Convention ground. The panel also finds that the claimants have not established, on a balance of probabilities, that the minor claimant faces a danger of torture or a risk to life, or a risk of cruel and unusual treatment or punishment, if he was to return to the United States. As such, he is not a Convention refugee under section 96 or a person in need of protection under subsection 97(1) of the IRPA.
[17] Accordingly, the analysis below is in respect of the principal claimant only.
Nexus
[18] For the principal claimant, the allegations establish a nexus to the Convention ground of membership in the particular social group of women fearing gender-related persecution. Thus, her claim has been analyzed pursuant to section 96 of the IRPA.
Credibility
[19] The panel finds the principal claimant to be credible as to the key allegations of her claim. Her testimony was detailed, spontaneous and straightforward. She testified credibly with respect to her father’s [XXX] work in Haiti. Specifically, she explained that he is a vocal advocate for the improvement of the socio-economic and other living conditions of the people of Haiti, and is known to vocally criticize the government, no matter which party is in power, for its lack of attention to certain matters. She provided as an example her father’s criticism of the government’s response to the earthquake at the time she was living in Haiti. She also testified credibly about her father’s continued [XXX] work in Haiti, which she believes would continue to put her at risk of being targeted.
[20] The principal claimant testified credibly with respect to her own experiences in Haiti as a direct result of her father’s work. In [XXX] 2010, after having helped her father with a [XXX] campaign, she was followed home from the market by unknown men. She also testified credibly with respect to the sexual assault she experienced in 2010, in which her aggressors explicitly instructed her to send a message to her father to cease his [XXX] work.
[21] The principal claimant did not try to embellish or exaggerate her allegations during her testimony. She explained that she was not aware of many details about her father’s work because he did not talk about his work; she was a child when she lived in Haiti, and she moved in with her father only when she was thirteen years of age. Until that time, she had been living with her grandmother. In addition, she explained that her father did not elaborate on the threats he himself received as a result of his work, because he did not want to alarm his children. Nor is the principal claimant aware of details about threats he is receiving in Haiti to this day as a [XXX] advocate. She explained that she harbours resentment toward him for the dangers she faced, and is not particularly close with him as a result.
[22] In addition, the principal claimant testified that she does not know precisely who her alleged agents of persecution are, just that they are people who are opposed to her father’s stance on [XXX] in Haiti. The panel finds her explanations in all of these matters to be reasonable, particularly considering her age when she left Haiti and the circumstances of the threats she faced, and finds that these matters do not detract from the principal claimant’s credibility generally.
[23] Moreover, there were no relevant contradictions, inconsistencies or omissions between the principal claimant’s BOC, the adult claimants’ testimonies at the hearing, and the documentary evidence on file that were not reasonably explained.
[24] In support of her claim, the principal claimant submitted an online article about her father and his [XXX] work in Haiti, for the organization, [XXX].8 In addition, the claimant submitted a statement from her father as to the difficulties faced by the principal claimant in Haiti as a result of his stance on [XXX].9
Objective Basis
[25] The principal claimant’s allegations in so far as her father’s work as an activist in Haiti are supported by the objective documentary evidence concerning the dire security situation in Haiti and the prevalence of politically-motivated violence in Haiti.10 The objective documentary evidence also discusses the importance of vengeance as a motivator for violence in Haiti, including politically-motivated violence and violence against activists.11 Moreover, the evidence indicates that, “in cases of political revenge, if those seeking it are serious, if they lose track of someone, they attack the family.”12
[26] The objective documentary evidence is corroborative of the risks and vulnerabilities facing women in Haiti, specifically those who are heads of households, absent a male protector. The principal claimant is a single mother, and would not have anyone to live with if she was to return to Haiti. Her father, who remains in Haiti, continues in his activism work. However, living with her father would not be a viable prospect as her connection to her father is the very reason for the violence she experienced in Haiti. As such, the panel finds that she does not, on a balance of probabilities, have a male protector in Haiti.
[27] The documentary evidence indicates that violence against women, including sexual violence, is widespread, a chronic and systemic problem, and is part of a culture of discrimination.13 The documentary evidence also indicates that violence against women and girls has “steadily increased” since 2009.14 Women who head their own households without the presence of a male protector face particular obstacles as regards their security, and also face discrimination in employment and provision of housing.15
[28] In consideration of the foregoing, the panel finds that the principal claimant has established, on a balance of probabilities, that her father was and continues to be a vocal [XXX] advocate in Haiti and that she experienced sexual violence in Haiti as a direct result of her father’s work. As such, the panel finds that the behavior of the principal claimant is consistent with a subjective fear in Haiti, and that her fear is objectively well-founded.
State Protection
[29] The panel finds that the principal claimant has rebutted the presumption of state protection with clear and convincing evidence that the Haitian state would be unable or unwilling to provide her with adequate protection.
[30] The principal claimant did not report her sexual assault to police in 2010. She was a teenager when it occurred, and she fled the country days later to join her mother who was living in the United States.
[31] The objective documentary evidence refers to the ineffectiveness and corrupt nature of the police in Haiti, as well as the involvement of Haitian police in human rights violations.16 A Response to Information Request in evidence indicates that in its 2014 report on Haiti, Human Rights Watch stated that “the weak capacity of the Haitian National Police contributes to overall insecurity in the country.”17 This research document also indicates that the police force is “not yet able to protect most of the citizens.”18 The research also indicates that there is inadequate protection for targets of acts of revenge in Haiti.19 Moreover, the objective documentary evidence points to a lack of protection for fundamental civil rights in the country, due to the weakness of the legal system, such that it is nearly impossible to call on judiciary channels due to corruption and impunity at all levels of the public administration in Haiti.20
[32] Women who are the victims of gender-based violence in Haiti, face particular challenges in obtaining state protection. The objective documentary evidence indicates that women are generally reluctant to seek help from the police and to report sexual abuse due to factors such as fear of discrimination, retaliation, stigmatization, the inability of the government to effectively respond to complaints or allegations, and fear of abuse or discriminatory treatment at the hands of police in Haiti.21 Despite the fact that legislation was introduced to enhance protection for women facing gender-based violence, the evidence indicates that the government “lacks the capacity to eradicate violence and discrimination against women [and] girls”.22
[33] Given the evidence, the panel finds, on a balance of probabilities, that if she were to seek it, adequate protection would not be provided to the principal claimant in Haiti. Furthermore, the jurisprudence is clear that the claimant is not required to risk her life seeking inadequate protection merely to demonstrate its ineffectiveness.23
Internal Flight Alternative (IFA)
[34] The panel suggested Port de Paix and Cap Haiïtien as potential internal flight alternatives, but finds that the principal claimant does not have a viable IFA in either location.
[35] The panel concludes that the alleged agents of persecution have the means and motivation to find and harm the principal claimant anywhere in Haiti. The principal claimant provided a credible explanation for the motivation of the bandits to harm her, in connection with her father’s work. Moreover, her father continues to live in Haiti and continues in his advocacy work. Furthermore, the panel has canvassed above the prevalence of politically-motivated violence in Haiti in the objective documentary evidence.
[36] The claimant testified as to the particular risks to which she would be vulnerable anywhere in Haiti, as a woman, particularly a woman with two children and no male protector, as discussed above. The panel finds, on a balance of probabilities, that the principal claimant would not have the effective protection of a male figure if she were to return to Haiti, which enhances her risk of persecution or harm in the IFA locations, on the basis of her gender.
[37] In addition, the panel points out the absence of state protection anywhere in Haiti, also discussed above.
[38] Accordingly, the panel finds that the principal claimant has demonstrated, on a balance of probabilities, that the agents of persecution have the means and the motivation to harm her should she return to Haiti and establish herself in the IFA locations. As such, the panel finds that the possibility of an IFA fails on the first prong.
DECISION
[39] After assessing all of the evidence, the panel concludes that if the principal claimant returned to Haiti she would face a serious possibility of persecution under section 96 of the IRPA, on the ground of her membership in the particular social group of women fearing gender-related violence in Haiti. Thus, the panel finds that the principal claimant, [XXX], is a Convention refugee. Accordingly, the panel accepts her claim.
[40] The minor claimant, [XXX], has not established a serious possibility of persecution on a Convention ground under section 96 of the IRPA, or that, on a balance of probabilities, he would be personally subjected to a risk within the meaning of subsection 97(1) of the IRPA, in the United States. Accordingly, his claim is rejected.
(signed) Nicole Ginsberg
1 July 4, 2019Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96, 97(1)(a) and 97(1)(b).
2 Document 4 – Exhibit D-2: Birth Certificate of [XXX], attaching letter from [XXX].
3 Document 6 – Letter from [XXX], attaching birth certificate of principal claimant.
4 Chairperson’s Guideline 4 of the Refugee Protection Division: Guideline issued by the Chairperson pursuant to Section 65(3) of the Immigration Act: Women Refugee Claimants Fearing Gender-Related Persecution. Effective date: November 13, 1996
5 Document 2 – Basis of Claim (BOC) forms.
6 Document 1 – Package of Information from the referring Canada Border Services Agency (CBSA) / Immigration, Refugees and Citizenship Canada (IRCC).
7 Varga v. Canada, 2006 FCA 394, paras. 9-l0; X(Re), 2017 CanLII 142905 (CA IRB), para 46.
8 Document 4, Exhibit D-1: News article on [XXX]: https://[XXX]
9 Document 6 : Letter of XXXX XXXX.
10 Document 3 – NDP, Haiti, 29 March 2019, tab 7.1: Response to Information Request, HTI106116.FE, Immigration and Refugee Board of Canada, 19 June 2018. Document 3 – NDP, Haiti, 29 March 2019, tab 7.2: Haïli: La situation sécuritaire, France, Office français de protection des réfugiés et apatrides, 29 August 2016. Document 3 – NDP, Haiti, 29 March 2019, tab 7.4: Haiti, 2017 Crime and Safety Report, United States, Overseas Security Advisory Council, 26 April 2017. Document 3 – NDP, Haiti, 29 March 2019, tab 4.17: Haiti’s Unrepresentative Democracy: Exclusion and Discouragement in the November 20, 2016, Elections, National Lawyers Guild, International Association of Democratic Lawyers, February 2017.
11 Document 3 – NDP, Haiti, 29 March 2019, tab 7.6: Response to Information Request, HTI1 06117.FE, Immigration and Refugee Board of Canada, 3 July 2018.
12 Ibid.
13 Document 3 -NDP, Haiti, 29 March 2019, tab 5.3: Response to Information Request, HTI105161.FE. Immigration and Refugee Board of Canada, 15 December 2016. Document 3 – NDP, Haiti, 29 March 2019, tab 5.5: Against Their Will: Sexual and Gender Based Violence Against Young People in Haiti. Doctors Without Borders, July 2017. Document 3 – NDP, Haiti, 29 March 2019, tab 5.9: Violence against Women, Trafficking, Prostitution, and Exploitation by UN Peacekeepers, Bureau des Avocats Internationaux et al., 22 January 2016. Document 3 – NDP, Tab 5.4: Response to Information Request, HTI105995.FE, Immigration and Refugee Board of Canada, 17 October 2017.
14 Supra, note 13. NDP, Haiti, 29 March 2019, tab 5.3.
15 Supra, note 13, NDP, Haiti, 29 March 2019, tab 5.4.
16 Document 3 – NDP, Haiti, 29 March 2019, tab 10.2: Response to Information Request, HTI105163.FE, Immigration and Refugee Board of Canada, 12 June 2015.
17 Ibid.
18 Ibid.
19 Ibid.
20 Document 3 – NDP, Haiti, 29 March 2019, tab 4.6: Political Transformation, Transformation Index 2018 Country Report: Haiti, Bertelsmann Stiftung, 2018.
21 Document 3 – NDP, Haiti, 29 March 2019, tab 5.1: Haiti. Social Institutions and Gender Index 2014, Organisation for Economic Co-operation and Development.
22 Ibid.
23 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.