2024 RLLR 85
Citation: 2024 RLLR 85
Tribunal: Refugee Protection Division
Date of Decision: July 25, 2024
Panel: Geneviève Ryan
Counsel for the Claimant(s): N/A
Country: Haiti
RPD Number: TC4-02884
Associated RPD Number(s): TC4-02885, TC4-02886, TC4-02887
ATIP Number: A-2025-00362
ATIP Pages: N/A
REASONS FOR DECISION
[1] XXXX XXXX (“the principal claimant”), his spouse XXXX XXXX (“the associate claimant”), their son XXXX XXXX XXXX XXXX (“the male minor claimant”) and their daughter XXXX XXXX XXXX XXXX (“the female minor claimant”) are Haitian citizens. They seek refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”).[1]
[2] The principal claimant was appointed as designated representative of the minor claimants. These claims were heard jointly pursuant to Rule 55 of the RPD Rules.
Preliminary matter
[3] Counsel for the claimants withdrew from the file about six weeks prior to the scheduled hearing. When asked about this at the hearing, the principal and associate claimants explained that their former counsel had informed them he was no longer registered with their provincial legal aid association and could no longer represent them on a legal aid certificate. The claimants stated as their preference was still to be represented for their hearing, they had attempted to retain new counsel for the hearing. Specifically, the principal claimant explained how he had contacted approximately ten or twelve potential new representatives. Of those, the only one available on such short notice was unable to accept their legal aid certificate and they could not afford to pay the counsel privately.
[4] Given their stated preference for having counsel and that their former counsel was required to withdraw for circumstances beyond the claimants’ control, I asked the claimants whether they wished to proceed self-represented or if they were seeking a postponement so they could have more time to retain new counsel. The claimants stated that despite their original desire to be represented, they preferred to proceed on a self-represented basis rather than suffer the additional delays that a postponement of their hearing would cause.
[5] Based on the claimants’ stated preference to proceed without further delays, the hearing proceeded in the absence of counsel. I took steps throughout the hearing to ensure the claimants were not disadvantaged by the loss of counsel, including by explaining procedures throughout the hearing, providing additional explanations of the determinative issues in play, and providing opportunities for the claimants to ask clarification questions throughout.
DETERMINATION
[6] For the reasons that follow, I find that all four claimants are Convention refugees under section 96 of the IRPA based on their political opinion (in the principal claimant’s case) and on their membership in a particular social group, namely the family (in the associate and minor claimants’ cases).
ALLEGATIONS
[7] The claimants’ allegations are set out in the principal and associate claimants’ Basis of Claim (“BOC”) forms[2] and were elaborated upon in testimony. In short, the principal claimant states that he was approached by a local politician (hereinafter “Mr. T”) and member of the Haitian Tèt Kale Party (“PHTK”) to assist in criminal activities being carried out by gangs working on the party’s behalf. Specifically, Mr. T wanted the principal claimant to assist in the trafficking of weapons so that the gangs could maintain control of their territory, and to use his position as an educator to influence and recruit young men and boys from the neighbourhood into joining and working for PHTK-affiliated gangs. When the principal claimant refused, Mr. T threatened to kill the principal claimant.
[8] Fearing for his life, the principal claimant fled Haiti to Chile in XXXX 2016. Upon discovering that the principal claimant was gone, Mr. T’s gang began targeting the associate claimant instead. In XXXX 2017, a group of men assaulted the associate claimant in her home. They warned her that if the principal claimant did not return to face them, she would be made to pay in his place. The associate claimant fled with the male minor claimant to XXXX, which was over an hour’s journey away by road, to stay with relatives living on a gated property. The gang traced the associate claimant to her new residence and frequently came to the home, attempting to break through the gate and calling for the associate claimant by name. The associate claimant made arrangements to secure passports for herself and her son and fled with the male minor claimant to Chile in XXXX 2018.
[9] The claimants allege that Mr. T is still active in Haiti today and that he and the gangs working with him have only become more powerful with time. The claimants fear further political violence if returned to Haiti and allege there is no adequate state protection or viable internal flight alternative available to them there.
ANALYSIS
Identity and Country of Reference
[10] The personal and national identities of the principal, associate, and male minor claimants as Haitian citizens have all been established on a balance of probabilities by their Haitian passports.[3]
[11] The female minor claimant does not have any Haitian identity documents, as she was born in Colombia while her family was in transit from Chile to Canada. Her only identity document is her Colombian birth certificate,[4] which confirms she is the daughter of the principal and associate claimants. I have therefore considered whether the female minor claimant has access to either or both of Haitian and Colombian citizenship.
[12] The principal and associate claimants both testified that when they were in Colombia, they were told their daughter could not acquire Colombian citizenship based on her birth in that country. They were issued a birth certificate for the purposes of documenting the date and place of her birth but were told that as neither of her parents were Colombian citizens or residents of Colombia she was not entitled to citizenship.
[13] The claimants’ testimony is consistent with the available objective evidence, which states that children born in Colombia are only entitled to citizenship if at least one of their parents is, at the time of birth, either a Colombian citizen or a person domiciled in Colombia.[5] In the context of Colombian law, domicile is defined as four years’ legal residence in the country and requires the resident to explicitly express their intention to remain permanently in the country.[6] As her parents had only been transiting irregularly through Colombia and had not been present in the country more than one or two months at the time of her birth, I find on a balance of probabilities that the female minor claimant has no access to Colombian citizenship. Colombia is therefore not a country of reference in this case.
[14] When asked whether their daughter would have access to Haitian citizenship, the principal and associate claimants were uncertain. They explained that although they knew she would have been a citizen if she had been born in Haiti, they did not know what the law said about children born to Haitians abroad.
[15] According to the Haitian constitution “[a]ny person born of a Haitian father or Haitian mother who are themselves native-born Haitians and have never renounced their nationality possesses Haitian nationality at the time of birth.”[7] There is nothing in the objective evidence to suggest this entitlement is restricted only to children of Haitians born on the national territory itself. Accordingly, I find on a balance of probabilities that the female minor claimant is a Haitian citizen, as she is the daughter of two native-born Haitian parents.
[16] Based on the foregoing analysis, the country of reference for all four claimants is Haiti.
1E Exclusion – Chile
[17] The principal claimant resided in Chile from XXXX 2016 to XXXX 2020. The associate claimant and male minor claimant resided in Chile from XXXX 2018 to XXXX 2020. Given the duration of their residence in Chile I have considered whether any or all of the principal, associate, or male minor claimants were permanent residents, or had access to permanent residence in Chile. I have not included the female minor claimant in this analysis, as she has never taken up residence in Chile prior to the date of her hearing.
[18] In assessing potential exclusion, I am guided by the test as articulated by the Federal Court of Appeal in Zeng.[8] To summarize, Article 1E of the Convention states that the Convention shall not apply to individuals who, as of the date of their refugee hearing, are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to nationality in that country. If the claimants do not have such status on the day of their hearing, I must determine whether they previously had such status and lost it, or if they had access to it and failed to acquire it. If the claimants either lost or failed to acquire permanent status I must then balance various factors to determine whether they are excluded, including: the reason for their loss of status, the possibility of return to that country, the claimants’ potential risk in their country of citizenship, Canada’s international obligations, and any other relevant facts.
The claimants were not permanent residents of Chile
[19] The principal and associate claimants testified that they neither sought nor acquired permanent residence in Chile, although they maintained valid temporary status during their time in that country. The available copies of the Chilean residence permits affixed to the claimants’ Haitian passports confirm that they only had temporary status in that country. The objective evidence indicates that although temporary residents in Chile enjoy certain rights,[9] the temporary nature of such status, which can only be conditionally renewed, is not sufficient to meet the Shamlou[10] criteria for rights “substantially similar” to those of nationals.
[20] Accordingly, I find that the claimants did not, at the time of their hearing, have permanent residence status in Chile. I also find on a balance of probabilities that they did not previously have such status. I have therefore proceeded to the next step of the Zeng analysis – whether they had access to such status and failed to acquire it.
The claimants had access to permanent residence and failed to acquire it
[21] When asked about their access to permanent residence in Chile, both the principal and associate claimant agreed they would have been able to apply for permanent residence but that they had not done so. They explained it had never been their intention to reside permanently in Chile, as they considered Canada a preferable country to settle in. They stated they had only settled temporarily in Chile for the purpose of working and saving money until they could afford to undertake the overland journey from Chile to Canada.
[22] The claimants’ subjective desire to settle in Canada and their preference for that country over Chile, which was a potential safe country of refuge for them, is not reasonable grounds for failing to acquire the permanent residence to which they were entitled. As noted in Zeng, the purpose of article 1E of the Convention is to prevent asylum shopping. As described by the Federal Court of Appeal, “[a]sylum shopping refers to circumstances where an individual seeks protection in one country, from alleged persecution, torture, or cruel and unusual punishment in another country (the home country), while entitled to status in a “safe” country (the third country).”[11]
[23] The claimants’ decision to forego permanent residence in Chile in favour of claiming asylum in Canada is precisely the sort of asylum shopping referred to in Zeng. Therefore, I find their failure to acquire permanent residence in that country is unreasonable. This factor weighs in favour of excluding the claimants from refugee protection.
Possibility of return to Chile
[24] As noted above, the claimants only held temporary resident status in Chile. Both the principal and associate claimants testified that their status needed to be renewed annually. This allegation is corroborated by copies of their Chilean temporary residence permits in their passports, which were valid for one year.[12] As it has now been four years since any of the claimants were in Chile, I find on a balance of probabilities that they no longer have any right to return to that country.
[25] As noted above, the claimants deliberately chose to allow their Chilean status to expire by foregoing the option to renew it or to convert it to permanent residence, which they had a right to do. The Federal Court has repeatedly held that once there is prima facie evidence that Article 1E applies, the onus shifts to the claimants to demonstrate why their residency status cannot be renewed or recovered.[13]
[26] The claimants have not demonstrated any reason why their status could not have been renewed apart from their subjective reluctance to do so. This weighs in favour of exclusion.
Forward-facing risk in Chile
[27] Asked whether he feared anything or anyone in Chile, the principal claimant stated that he had been robbed at gunpoint by another Haitian residing in Chile in XXXX 2019. Although the principal claimant reported the man to police, he was not arrested. The principal claimant stated he feared retribution from his attacker for having made the police report. When asked whether his attacker was still in Chile, the principal claimant stated he did not know. When asked whether he had heard if his attacker was actively looking for him, the principal claimant admitted he had not heard anything to that effect but that he assumed that if he were to meet his attacker again, he would be at risk. The principal claimant did not allege that he had been pursued or threatened by his attacker at any point between the robbery in XXXX 2019 and departing from Chile a year later, in XXXX 2020.
[28] Apart from fearing the man who robbed him, the principal claimant did not state he had any other fear of returning to that country. For her part, the associate claimant simply stated that she was not comfortable in Chile and preferred to reside in Canada.
[29] The fact that the principal claimant was once robbed in Chile is insufficient, without more, to establish a forward-facing risk in that country. This is especially telling considering the principal claimant’s testimony that he was not pursued or threatened by his attacker in the year that followed the principal claimant reporting the incident to police. If he was not pursued or threatened in the immediate aftermath of the police report it seems even less likely that he would be at any risk now, some five years later.
[30] Accordingly, I find on a balance of probabilities that none of the claimants have a forward-facing risk of persecution or other harm in Chile. This favour weighs in favour of exclusion.
Forward-facing risk in country of citizenship and Canada’s international obligations
[31] For the reasons set out in detail below, I find that the claimants have established a forward-facing risk of persecution in Haiti. This is a significant finding, considering Canada’s international human rights obligations, in particular that of non-refoulement. It would be contrary to Canada’s international obligations to return the claimants to a country where they face a serious possibility of persecution.
[32] Regardless of the reason for their loss of status in Chile, the fact remains that Haiti is the only country to which the claimants could now be returned. In light of my finding that they would face a serious possibility of persecution in that country, these factors weigh heavily against excluding the claimants.
Conclusion on 1E exclusion
[33] As described above, several factors weigh in favour of excluding the claimants from refugee protection. Despite their unreasonable failure to renew their status or obtain permanent residence in Chile, the mandate of this panel is to ensure that the claimants are not returned to a country where they face a forward-facing risk of persecution. Excluding them from refugee protection in spite of my finding that they have a forward-facing risk of persecution in Haiti would lead to that unacceptable result.
[34] Accordingly, I find that the claimants’ forward-facing risk of persecution and Canada’s international obligations together are determinative of the exclusion analysis. The principal, associate, and male minor claimants are not excluded under Article 1E of the Convention.
Forward-facing risk – Haiti
Credibility
[35] Sworn testimony is presumed true unless there is a valid reason to doubt its truthfulness. In this case, the principal and associate claimants’ testimonies were largely spontaneous, direct, and consistent both with one another and with the allegations set out in their BOC narratives. I noted no apparent attempts to either evade questioning or embellish the claims.
[36] Although the claimants did not present corroborative evidence in support of their claims, I note that there is no positive obligation upon them to do so. I am also mindful of their status as unrepresented claimants and of their testimony that correspondence with anyone Haiti is currently difficult, considering the instability prevailing in that country. These factors increase the difficulty inherent in obtaining corroborative evidence in support of the claims.
[37] Based on the above analysis, I find that the claimants’ credible and uncontradicted testimony is sufficient on its own to establish their BOC allegations on a balance of probabilities.
Nexus
[38] Although the principal claimant was primarily targeted for his refusal to participate in criminal activity, I note that his allegations reveal a significant political dimension. Specifically, the principal claimant was approached by a member of the ruling PHTK to work with criminal agents in the party’s employ and to use his position in the community to influence local youth to do the same. The principal claimant’s refusal to do so therefore explicitly placed him in opposition to the PHTK and its goals. I find on a balance of probabilities that the principal claimant was targeted for the political opinion imputed to him for refusing to work with the PHTK and its agents to accomplish the party’s goals.
[39] The associate and minor claimants fear persecution from the PHTK and its agents based on their family connection to the principal claimant. I find there is a nexus between what they fear and a Convention ground, namely, membership in a particular social group (the family).
[40] As all four of the claimants have a nexus to a Convention ground, I have assessed their claims under s.96 of the IRPA.
Objective basis
[41] The objective evidence supports a finding that the claimants’ fears are objectively well-founded.
[42] Regarding the general security situation in Haiti, the most recent US Department of State report[14] states that gang violence has escalated across Haiti, particularly in urban areas. In some cases, the gangs operating throughout Haiti are alleged to have the support of various political and business actors in the country. Kidnappings for ransom by armed groups have increased, affecting all layers of Haitian society. In addition, tens of thousands of Haitians have been displaced by ongoing gang warfare in the country, which has destroyed homes, property, and vehicles in urban neighbourhoods across the country.
[43] Regarding the PHTK, the objective evidence indicates that it remains the most powerful political party in the country. As for opponents to the PHTK, political opponents in Haiti have “never been treated well” historically and that continues to be the case at present. Political opponents in Haiti risk a wide range of harms, including arbitrary or illegal arrest and imprisonment and violence at the hands of criminal groups at the direction of political leaders. There are numerous well-documented cases of political opponents and their families being targeted by criminals employed by politicians throughout the years and up to the present day.[15]
[44] Based on the claimants’ credible allegations and the objective evidence cited above, I find that the claimants’ subjective fear of persecution in Haiti is objectively well-founded.
State protection
[45] There is a presumption that states can protect their citizens unless the country is in a state of complete breakdown.
[46] The objective evidence indicates that Haiti’s last 10 elected senators left office in January 2023, leaving the country without a single democratically elected official or a functioning parliament.[16] Although Ariel Henry remained the de facto Prime Minister at that time, he was not elected and his legitimacy was widely questioned due to his appointment just days prior to the assassination of President Jovenel Moïse. Ariel Henry also rejected the results of the 30 January 2022 elections held by the interim government. Ariel Henry was subsequently forced out of office on March 11, 2024, by organised criminal groups who had seized control of the airport and refused to allow Henry to return from a trip abroad.[17] Since then, a Transitional Council has been established to govern the country, though this body is also not elected and its authority and legitimacy have already been rejected by many of the major gangs operating in Haiti.[18]
[47] As a result, the political situation in Haiti has been described as “really chaotic”, with all democratic institutions in the country reportedly “completely dysfunctional”.[19] Other state institutions charged with upholding the law, including police and the judiciary, are unable to defend either themselves or others against widespread political and gang violence in the country.[20] The situation has deteriorated to the point that criminal gangs reportedly control much of the country, including the majority of Port-au-Prince, the nation’s capital. Gangs also control many of Haiti’s major roads and can cut off the country’s fuel supplies by closing off the country’s roads and ports at will.[21]
[48] I find that this qualifies as evidence that Haiti is in a state of complete breakdown, as there is no functioning state institution from which any of the claimants could reasonably be expected to seek or receive state protection. I therefore find there is no effective state protection available to them in Haiti.
Internal flight alternative
[49] I have considered whether there is a viable internal flight alternative (“IFA”) available to the claimants in Haiti. In assessing whether a viable IFA exists, I am guided by the Federal Court of Appeal in Thirunavukkarasu.[22] If there is a safe haven where a claimant can live free from harm in their own country, they are expected to avail themselves of it, unless they can show it is objectively unreasonable or unduly harsh for them to do so.
[50] As noted above, the claimants provided credible testimony regarding the ongoing motivation of the PHTK and its criminal agents to pursue them again if they ever return to Haiti. The objective evidence equally supports a finding that criminal groups, including those working for political actors, have the means to trace their targets across the country. Specifically, the evidence states that Haitians “tend to be geographically tied to a small area and so anyone outside their [usual] circle will be quickly recognized”.[23] There are credible reports of individuals being traced by word of mouth alone, even when they have been outside the country for many years and have cut off contact with most or even all their former associates.
[51] Consequently, I find on a balance of probabilities that the claimants’ agents of persecution would have both the means and motivation to trace and pursue them regardless of where in Haiti they went. I therefore find there is no viable IFA available to them.
CONCLUSION
[52] I find that the principal claimant faces a serious possibility of political persecution in Haiti. I therefore find him to be a Convention refugee and accept his claim.
[53] I find that the associate and minor claimants face a serious possibility of persecution based on their membership in a particular social group (the family), based on their family ties to the principal claimant. I therefore find them to be Convention refugees and accept their claims.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
[2] Exhibits 2.1 and 2.3 – Basis of Claim Forms TC4-02884 and TC4-02886.
[3] Exhibit 1 – Claim referral information from CBSA/IRCC.
[4] Ibid.
[5] Exhibit 3.2 – National Documentation Package, Colombia, 31 May 2024, tab 3.2: Title III, Chapters 1-4 of the Constitution of Colombia, 1991. Immigration and Refugee Board of Canada. 7 April 2014. COL104814.E.
[6] Exhibit 3.2 – National Documentation Package, Colombia, 31 May 2024, tab 3.3: Report on Citizenship Law: Colombia. European University Institute. European Union Democracy Observatory on Citizenship. Cristina Escobar. May 2015.
[7] Exhibit 3.1 – National Documentation Package, Haiti, 31 May 2024, tab 3.22: Title II: Haitian Nationality. Haiti’s Constitution of 1987 with Amendments through 2012.. Haiti; Comparative Constitutions Project. 1987.
[8] Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118 at para 28.
[9] Exhibit 3.3 – National Documentation Package, Chile, 31 May 2024, tab 3.7: Chile and Haiti: Requirements and procedures for foreign nationals, particularly Haitians, including parents or spouses of Chilean citizens or permanent residents, to obtain and maintain permanent residence in Chile, including through temporary residence; rights and obligations of permanent residents; circumstances leading to the loss of permanent residence; possibility of extending or reacquiring status if lost or expired (2021–January 2023). Immigration and Refugee Board of Canada. 21 July 2023. ZZZ201620.E.
[10] Shamlou v. Canada (Minister of Citizenship and Immigration) (1995), 32 Imm. L.R. (2d) 135 (F.C.T.D.).
[11] Zeng, supra note 8 at para 19.
[12] Exhibit 1 – Claim referral information from CBSA/IRCC.
[13] Shamlou, supra note 10. See also : Shahpari v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm LR (2d) 139 (FCTD); Chen, Xiangju v. Canada (MCI), 2018 FC 756.
[14] Exhibit 3.1 – National Documentation Package, Haiti, 31 May 2024, tab 2.1: Haiti. Country Reports on Human Rights Practices for 2023. United States. Department of State. 22 April 2024.
[15] Exhibit 3.1 – National Documentation Package, Haiti, 31 May 2024, tab 4.1: The situation of political parties and the treatment of political opponents, including by criminal groups (2021–January 2023). Immigration and Refugee Board of Canada. 16 February 2023. HTI201333.FE.
[16] Ibid.
[17] Exhibit 3.1 – National Documentation Package, Haiti, 31 May 2024, tab 1.40: International Protection Considerations with Regard to People Fleeing Haiti. United Nations High Commissioner for Refugees. 20 March 2024.
[18] Ibid.
[19] Exhibit 3.1 – National Documentation Package, Haiti, 31 May 2024, tab 4.1: The situation of political parties and the treatment of political opponents, including by criminal groups (2021–January 2023). Immigration and Refugee Board of Canada. 16 February 2023. HTI201333.FE.
[20] Exhibit 3.1 – National Documentation package, Haiti, 31 May 2024. See for example tabs 2.1, 7.8, and 10.7.
[21] Exhibit 3.1 – National Documentation Package, Haiti, 31 May 2024. See for example tabs 7.1 and 7.8.
[22] Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). [Thirunavukkarasu]
[23] Exhibit 3.1 – National Documentation Package, Haiti, 31 May 2024, 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.