Citation: 2020 RLLR 51
Tribunal: Refugee Protection Division
Date of Decision: October 19, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): Milan Milenkovic
Country: Haiti
RPD Number: VB9-06803
ATIP Number: A-2021-00655
ATIP Pages: 000139-000148
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim of [XXX] (the claimant). The claimant claims to be a citizen of Haiti and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1
DETERMINATION
[2] Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.
[3] Its reasons are as follows:
ALLEGATIONS
[4] The claimant’s complete allegations are set out in the Basis of Claim Form (BOC)2 and need not be repeated here in detail.
[5] To summarize briefly, the claimant was targeted by organized crime after refusing to give up his XXXX to the members of this organized crime group. The claimant was employed by [XXX] in Haiti. He was employed as a [XXX] (in Portau-Prince), a dangerous area overrun by bandits. He testified that his work involved [XXX]
[6] On [XXX] 2019, while working, the claimant was approached by a stranger. The man asked him to give him his [XXX]. The claimant refused, explaining the procedure involved in handing over an [XXX]. The stranger became furious and threatened him. Strangers started asking the security guards at work about the claimant.
[7] On [XXX] 2019, while at the [XXX], the claimant was called out by an individual who took an interest in his [XXX]. This person knew when the claimant’s work shift ended, and the name of the person assigned to the following shift. Out of fear, the claimant remained at the [XXX] for several hours after his shift ended, until he felt it was less risky to leave the [XXX].
[8] After this incident, the claimant took precautions in his means of transportation to work. Eventually, the situation became too stressful and the claimant quit his job on [XXX] 2019. He did so as he thought that quitting the job would put an end to his troubles.
[9] On [XXX] 2019, while exiting [XXX], two persons gestured for him to stop his car. These persons shot in the direction of the car. The claimant sought state protection from the police in [XXX] on [XXX] 2019, to no avail. He does not know if the police investigated his complaint. The claimant moved to be away from his wife and daughter. He did this to keep them safe. Despite his move, on [XXX] 2019 a car chased him at high speed on the [XXX] highway. The car went out of its way to reach him. The claimant left Haiti on [XXX] 2019 on a plane ticket paid for by his sister. He landed in [XXX] USA, and made his way to Canada. His claim was referred at the Port of Entry on Aug 29, 2019.
[10] The claimant fears being killed by the bandits who tried to kill him on [XXX] 2019 and [XXX] 2019.
[11] The claimant also alleges risk to his life, risk of torture or risk of cruel and unusual treatment or punishment at the hands of the same agent of harm
[12] The claimant alleges that neither state protection nor safe and reasonable internal flight alternatives are available in his country of nationality.
ANALYSIS:
[13] The main issue is internal flight alternative (“IFA”).
Identity
[14] The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file, along with other documents. The panel is satisfied of the claimant’s identity.
Nexus
[15] For the claimant to be a Convention refugee, the fear of persecution must be “by reason of’ one of the five grounds enumerated in the Convention refugee definition. In other words, the claimant must have a well- founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.
[16] There are numerous Federal Court cases which have held that victims of crime, corruption[1], or vendettas[2] generally fail to establish a link between their fear of persecution and one of the five grounds in the definition of Convention refugee.
[17] The panel finds that the harm feared by the claimant is not by reason of one of the five grounds enumerated in the Convention refugee definition. The panel finds that the allegations concern criminal acts perpetrated against the claimant for reasons not related to a nexus. The panel shall therefore analyse the claim under section 97(1).
Credibility
[18] When credibility is assessed there are two principles that are followed. Firstly, when a claimant swears to the truthfulness of certain facts3 there is a presumption that what he is saying is true unless there is reason to doubt it. Secondly, when assessing credibility the panel is entitled to rely on rationality and common sense4. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities.
[19] The claimant’s allegations do not run contrary to generally known facts. The claimant was interviewed by CBSA at the border5. The claimant’s statements during the interview are consistent with his BOC allegations. In fact, they provide detail which adds to the credibility of the allegations. This adds to the credibility of the claimant as a witness. The claimant’s testimony at the hearing was consistent with his allegations. The testimony was spontaneous and direct. He has documented his allegations. The claimant is credible.
S. 97 ANALYSIS
[20] Section 97 is based on an objective assessment of risk, and the evidence must establish a specific, individualized risk for a claimant rather than generalized human rights violations in a country. Being a victim of crime does not make someone automatically qualify under section 97. There must be evidence establishing, on the balance of probabilities, that the claimant would be subjected personally to a danger of torture, a risk to life or a risk of cruel and unusual treatment or punishment. In addition, to succeed under s. 97(1)(b), the claimant must also establish that the risk they face is not faced generally by others in or from the country.
[21] The panel finds that the claimant would be subjected personally to a risk to life, or risk of cruel and unusual treatment or punishment in Haiti because of criminals’ interest in getting back at him since his refusal to give them his [XXX] in [XXX] 2019. The panel further finds that the claimant’s risk is not faced generally by others in or from Haiti.
[22] The claimant does not name the criminals who have targeted him. But these criminals’ continued threats against him would, the panel finds, reasonably point to one same group of criminals who are targeting him. On a balance of probabilities, the panel accepts that the threats were by the same group of criminals targeting the claimant. This is because the claimant was specifically targeted by people who knew his identity, his schedule and his whereabouts. These criminals tracked and targeted him by threatening and attacking him, trying to shoot at him and run him off the road. This targeting carried over during various months and in various locations. There is no evidence that the claimant had any other problems with criminals in Haiti. People in Haiti are susceptible to crime and violence, but the claimant in this case the evidence establishes that the claimant was individually and specifically targeted by the same group of criminals.
[23] Moreover, the events described go well beyond the general situation of gang crime or organised crime that is prevalent in Haiti. Even after the claimant quit his job as an [XXX] at the [XXX] in [XXX] 2019, he continued to be targeted, notably outside of [XXX], while on the road to [XXX] This was after he moved from his home in [XXX] 2019. This is relevant as he no longer had access to the [XXX] which was the starting point for the criminals’ interest in him in [XXX] 2019. The risk shifted to the claimant independently of whether his employment makes him of interest to the criminals. The risk has also now shifted independently of whether the claimant works in the area where he was first threatened. It is a risk that is more significant and more direct than that faced by others in Haiti.
[24] In sum, the panel finds on a balance of probabilities that the claimant would be subjected personally to a risk to life or risk of cruel and unusual treatment or punishment in Haiti that is not faced generally by others in or from Haiti.
[25] The risk he faces started as a risk resulting from his employment as a [XXX] for [XXX] at the [XXX]. That risk has now evolved to a specific, individualized risk that is unrelated to his employment as the risk is about him alone. That risk is not faced generally by large segments of the population in Haiti.
Similarly situated persons and objective basis
[26] The objective country conditions evidence contains various documents on the harm faced by someone who has an unsettled score with gangs or other criminal elements6. The Board’s Response to Information Request (RIR) on Acts of Revenge committed by gangs or by other organized crime entities7 provides relevant information on the objective basis of this claim. Several sources in this RIR state that gangs and armed groups commit acts of revenge in Haiti. These acts of revenge are described as one of the methods of control used by gang leaders. Independently of their connection to gangs, criminals reportedly also commit acts of revenge. The perpetrators of acts of revenge may be guns for hire who work for others. Given the number of sources cited in this RIR, the panel gives this information significant weight. The information it provides is in conformity with other documents on file on the country conditions in Haiti.
[27] Having established the prevalence of acts of revenge committed in Haiti by a variety of actors, the panel turns to the question of the motive for these acts of revenge. They are described, still in this same RIR, as occurring for a variety of reasons. Among these reasons is wanting to punish or dissuade those who oppose armed groups, and to settle scores. According to one source, those who report criminals to the police are particularly targeted. The panel notes that the claimant did file a police report. Acts of revenge are generally described as including murder and other grievous acts.
[28] As for the ability to track down victims, the principal means described in the same RIR is word of mouth. The RIR refers to the effectiveness of different ways of locating people in Haiti. In addition, it reports that anyone outside a one’s small area will be quickly recognised. People in Haiti are reportedly “generally well aware of their neighbours’ business”8. The ability to track someone reportedly persists for years when a gang remains interested in that person. Some victims of acts of revenge have reported that the police helped assailants locate them.
[29] Based on all of the stated evidence, the panel finds that there is an objective basis to the claim.
State Protection:
[30] Claimants must show, on a balance of probabilities, that adequate State Protection is not available. The issue before the panel was whether it was objectively unreasonable for the claimant(s) to have sought state protection. While states are presumed to be capable of protecting their nationals, it was open to the claimant(s), according to the law, to rebut the presumption of protection with “clear and convincing” evidence.
[31] The claimant sought state protection to no avail. This is consistent with the available country conditions evidence.
[32] Several items of the NDP9 mention the inability of the police in Haiti to protect the people of Haiti. Corruption and impunity for crimes are described as being widespread in Haiti. One document references the French OFPRA report, which explains that: “The capabilities of the Haitian National Police are not sufficient, both in terms of the number of police officers who are mainly present in the capital, and in terms of the equipment available to the police, noting in particular the lack of fuel, cars and computers. » In the same vein, it states that “Haiti’s National Police has a limited response capacity and lacks the resources to complete investigations, which compromises the deterrent effect on criminals who act without fear of the police authorities.” The document also indicates that the police are notable to protect themselves from criminals in Haiti. When the panel considers the entirety of the evidence on country conditions in Haiti, it finds that the claimant could not avail himself of adequate state protection in Haiti. The presumption of state protection has been rebutted.
Internal Flight Alternative (IFA):
[33] The IFAs of [XXX] were suggested at the hearing. Having heard the evidence the panel finds that the analysis of IFA fails on the first prong. The panel finds that the people who have targeted the claimant could locate the claimant in an IFA. As seen in the section on risk under section 97(1), the agents of harm have demonstrated their motivation to pursue the claimant outside of [XXX]. They have also demonstrated their motivation to pursue him over time. As seen in the section above on the objective basis, the social and neighbourhood networks in Haiti would make it possible for the agents of harm to locate him in the proposed IFAs. The panel finds that, on a balance of probabilities, the claimant faces a risk to life or risk of cruel and unusual treatment or punishment in the proposed IFA – s. 97(1) and throughout Haiti, which is a geographically small country.
CONCLUSION
[34] Having considered all of the evidence, the panel determines that, on a balance of probabilities, the claimant would face a risk to life or a risk of cruel and unusual treatment or punishment in Haiti.
[35] The claimant is credible.
[36] The panel concludes that the claimant is a person in need of protection and the panel therefore accepts their claim.
(signed) Miryam Molgat
October 19, 2020
[1] Leon, Johnny Edgar Orellana v. M.C.I. (F.C.T.D., no IMM-3520-94), Jerome, September 19, 1995; Calero, Fernando Alejandro (Alejandeo) v ME.I. (F.C.T.D., no. IMM-3396-93), Wetston, August 8, 1994; and Vargas, Maria CecillaGiraldo v. ME.I. (F.C.T.D., no T-1301-92), Wetston, Mary 25, 1994.
[2] Marincas, Dan v ME.I. (F.C.T.D., no IMM-5737-93), Tremblay-Lamer, August 23, 1994; De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 74 (F.C.T.D.); and Xheko, Aida Siri v. M.C.I. (F.C.T.D., no IMM-4281-97), Gibson, August 28, 1998.
3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302, 31 N.R. 34 (C.A.).
4 Shahamati, Hasan v. Minister of Employment and Immigration (F.C.A., no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994
5 Solemn Declaration by C. Cabot, Exhibit 1
6 National Documentation Package, Haiti, 1 September 2020, sections 2 and 7.
7 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
8 National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.
9 National Documentation Package, Haiti, 1 September 2020, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2019. United States. Department of State. 11 March 2020. National Documentation Package, Haiti, 1 September 2020, tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). Immigration and Refugee Board of Canada. 3 July 2018. HTI106117.FE.National Documentation Package, Haiti, 1 September 2020, tab 7.8: Major criminal groups, including their areas of operation, their structure and their activities; state response (2016-May 2019). Immigration and Refugee Board of Canada. 6 June 2019. HTI106293.FE.