2023 RLLR 104
Citation: 2023 RLLR 104
Tribunal: Refugee Protection Division
Date of Decision: December 27, 2023
Panel: Radostina Pavlova
Counsel for the Claimant(s): Murhula Jugauce Mweze
Country: Haiti
RPD Number: TC3-06464
Associated RPD Number(s): N/A
ATIP Number: A-2024-00593
ATIP Pages: N/A
DECISION
[1] XXXX XXXX (hereafter, the “claimant”) is a citizen of Haiti who is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (“IRPA”, the “Act”).[1]
ALLEGATIONS
[2] In summary, the claimant alleges that, in Haiti, he fears vengeful acts on the part of his maternal uncle, who has been jealous for years of the claimant’s mother’s successful XXXX and XXXX activity. This uncle, according to the claimant, wanted to obtain money from the claimant’s mother, and to take possession of some family assets. When unsuccessful, he took revenge by causing the death by “mystical means” of several close family members of the claimant – his mother, in 2016; his sister, in 2022; and his father, in 2023. The claimant alleges that these three family members were in good health when they suddenly passed away from illnesses that the doctors could not diagnose. The claimant left Haiti after his mother’s death and lived in Chile from 2017 to 2021; he alleges that he was unable to obtain permanent resident status there. He claims that his uncle in Haiti continued to utter threats and to this day intends to harm the claimant as an act of revenge.
DETERMINATION
[3] For the reasons that follow, I find that the claimant is a person in need of protection in the meaning of section 97(1) of the IRPA.
ANALYSIS
The claimant’s identity is established
[4] The claimant’s identity was established on a balance of probabilities through his oral testimony and the certified true copy of his Haitian passport,[2] which is on file.
The claimant is not excluded Article 1E of the Convention
[5] Given the claimant’s prior residence in Chile, the Tribunal notified[3] the Minister of the possibility that the claimant might be excluded under Article 1E of the Convention. The Minister responded[4] to the invitation, informing the Refugee Protection Division (RPD) that they would not intervene in the hearing of the claim.
[6] Article 1E of the United Nations Convention Relating to the Status of Refugees stipulates:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
[7] This article has been incorporated in s. 98 of the IRPA:
A person referred to in Section E or F of Article 1 of the Convention is not a Convention refugee or a person in need of protection.
[8] The applicable legal test for Article 1E exclusion was established by the Federal Court of Appeal in the case of Zeng.[5] Under the Zeng framework of analysis, the first step is to establish whether, at the time of the hearing, the claimant has status in another country that is substantially similar to that of its nationals. If the answer to this question is yes, then the claimant should be excluded under Article 1E of the Convention. If the answer is no, then the Panel must consider whether the claimant previously had such status and lost it or had access to it and failed to acquire it. If the answer to this question is yes, then the following factors must be considered in deciding whether the claimant should be excluded: the reason for the loss of status (voluntary or involuntary); whether the claimant could return to the third country where he had status; the risk the claimant would face in the home country; Canada’s international obligations; and any other relevant facts.
[9] In the present case, when questioned at the hearing about the nature and validity of his residence status in Chile, the claimant testified that he had obtained a temporary resident status in Chile some time after his arrival and that this status expired a long time ago. He testified that he was unable to present any document, such as a residence card, since his belonging had been stolen on the way to Canada. He further explained that he had attempted to prolong his residency rights in Chile and/or to obtain a permanent residence status, and had submitted an application to the Chilean authorities, but he never received any response, in spite of his continued checking and following up; he claimed that he had been repeatedly told to wait. I have no reason to disbelieve the claimant’s testimony on this question, and in the absence of evidence to the contrary, I accept on a balance of probabilities that the claimant’s status in Chile was temporary and that he did not obtain a residence status, such as permanent residence, that would accord to him rights and responsibilities essentially similar to those accorded to Chilean nationals. Therefore, the answer to the first and second questions of the Zeng test is “no”. The determinative question, therefore, is whether the claimant had access to such status, but failed to obtain it. Having found earlier that his testimony that he tried to do so but was unsuccessful in that he got no response over a long period of time, to be credible on a balance of probabilities, I find that the answer to this question is also “no”.
[10] For the above reasons, applying the Zeng test to the present circumstances, I find that the claimant is not excluded under Article 1E of the Convention and proceed with examining his allegations against his country of origin, Haiti.
Nexus to a Convention ground is not established
[11] The claimant’s core allegations when it comes to Haiti consist of fearing for his life and physical integrity because of an extended family member’s intent to harm him, driven by jealousy and a desire to take revenge. It is not alleged, and it does not arise from the evidence before me, that the claimant fears persecution on the basis of any of the enumerated Convention grounds – race, nationality, religion, membership in a particular social group or political opinion. For this reason, I find that a connection to a Convention ground has not been established. There is also no evidence that the claimant may be exposed to a risk of torture in the meaning of section 97(1)a of the IRPA. Therefore, I have assessed the claim under s. 97(1)b of the Act.
The claimant’s key allegations are credible
[12] In the case of Maldonado[6] the Federal Court established the principle of presumption of truth, where a refugee claimant’s sworn testimony is presumed truthful unless there is a reason to doubt its veracity. In the present case, I found the claimant’s testimony to be direct and spontaneous, sufficiently detailed, and consistent with his Basis of Claim (BOC)[7] narrative and the documentary evidence[8] presented in support of his allegations. He submitted in evidence copies of death certificates for his mother, sister and father, as well as letter of testimony from a friend of the family, corroborating the claimant’s allegations regarding the conflict with the said uncle and the latter’s jealousy, that the death of the claimant’s mother was unexplained by medical professionals, and that the claimant left Haiti as a result of fearing his uncle.
[13] I find that, on the basis of his testimony and the documentary evidence, the claimant has established the following circumstances on a balance of probabilities:
[14] There was a conflict in his family stemming form jealousy on the part of an uncle, where he uttered threats and wanted to claim some assets.
[15] Three family members of the claimant, his mother, his sister and his father died within a period of six years, and in the absence of a specific medical explanation, the claimant, as well as others close to the family, believe that their deaths were caused by that uncle through “mystical” means.
[16] The alleged agent of harm has maintained his grudge and has an ongoing desire to exact revenge on the claimant as a member of the family.
Nature of the risk of harm
[17] Having found that the above circumstances have been established on a balance of probabilities, I have examined the nature of the alleged risk of harm for the claimant. I have no doubt that the claimant sincerely and strongly believes that his close family members’ deaths occurred as a result of a voodoo curse cast by his uncle or at his request. While the death certificates presented in evidence do not identify the cause of death, thus, there is no evidence contrary to the claimant’s allegations that all three were in good health and the doctors could not identify a particular medical condition that led to the loss of life, I am not prepared to accept a novel interpretation of the natural word, one where it is possible to cause someone’s death through mystical means. I have, therefore, examined the available objective evidence found in the National Documentation Package (NDP) for Haiti[9] in view of illuminating the basis of the belief that the use of voodoo can inflict actual physical harm and death.
[18] According to Item 1.29 of the NDP, the official religions in Haiti are Catholicism and voodoo, where voodoo is practiced by about 2.1% of the population. Item 1.7 states that as many as 50%-80% percent of Haitians incorporate some elements of voodoo culture or practice in addition to another religion. Different sources in the NDP, such as Items 1.18, 1.41 and 12.2, indicate that, in Haiti, under the influence of voodooist beliefs, calamities, epidemics and even socio-political problems are commonly attributed to supernatural causes, such as evil spirits and curses. An ethologist cited in Section 1.2 of Item 12.2 of the NDP describes voodoo as “a general system of practices and knowledge related to illness, care and healing […]” (translation); voodoo, in addition to being an African religion, is defined in this source as a system of care with magical-religious aspects that is relied upon in a similar manner that medicine is relied upon in Western societies.
[19] When it comes to the actual or perceived use of voodoo in interpersonal conflicts or as a form of revenge, Item 7.4 of the NDP mentions a 2019 report about two voodoo practitioners who were killed because they were believed to have used “occult powers” to kill their neighbours. According to Item 7.6, voodoo curses are a known form of revenge in Haiti. A report by the French refugee and stateless persons protection office – OFPRA, at Item 12.2 of the NDP, elaborates on the use of “witchcraft” for criminal purpose in Haiti, including in the context of intra-family conflict. This source describes what seems to be an elaborate system of beliefs and concepts related to the possibility of influencing the combat between the spirits responsible for the life and protection of one individual against another, where rituals and ceremonies are used to this end and turning a family member into a zombie is mentioned as form of harm inflicted in an internal familial dispute. Notably, according to the same source, such activities are penalized by law where Art. 246 of the Criminal Code specifies that using substances to produce death or a lethargic state in another person qualifies as poisoning constituting murder or attempted murder. I find that this definition of the offence is an indicator that, while some people may believe that a death was caused by purely spiritual or “mystical” means, in the context of voodoo practices in Haiti when they are used for criminal purposes, much more conventional means, such as poisoning, may be employed. Thus, I find that it is not clearly implausible, that, in the present case, the claimant’s family members’ deaths were caused by non-mystical conditions, such as poisoning, even though he strongly believes otherwise.
[20] On the basis of the above, I find that the risk faced by the claimant is a risk to his life or physical integrity. I find that this risk is personal to him, as it stems from the desire of a family member to exact revenge against the claimant specifically and is not faced by the general population in Haiti. It is not a risk arising from the application of lawful sanctions, and it is not caused by the inability of the state to provide medical care.
State protection
[21] The NDP for Haiti contains abundant information speaking to the inability of the state to provide protection to its citizens from criminal acts, which are widespread and committed with impunity. According to Item 7.6, there is little to no protection in Haiti from acts of revenge; the Haitian police lack resources to protect targets of revenge and policemen are often themselves targeted. The judiciary, according to the same source, is also under-resourced, as it is ineffective and susceptible to corruption. Further evidence in this respect can be found at Items 7.9, and 10.2, among others. For this reason, I find that the presumption of state protection has been refuted by clear and convincing evidence and that the claimant cannot rely on such protection in Haiti.
Internal Flight Alternative
[22] The objective evidence similarly indicates an absence of a viable Internal Flight Alternative (IFA) for the claimant in Haiti. Item 7.6 of the NDP points out that the principal means by which an assailant would locate their target in Haiti is through the use of informal networks and word-of-mouth. This is an effective means of locating victims, according to the same source, as outsiders to a particular area are easily recognized and rumours quickly spread. It is also important to consider that merely travelling to an IFA location would expose the claimant to significant risks of generalized criminality, given the evidence, at Item 14.1, that persons returning from abroad are more likely to be kidnapped for ransom, and that criminal gangs exercise control over some of the main routes. Therefore, I find that the claimant does not have a viable IFA anywhere in Haiti.
CONCLUSION
[23] Based on the reasons provided above, I find that the claimant is a person in need of protection under s. 97(1) of the IRPA.
[24] The claim is accepted.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, sections 96 and 97(1).
[2] Exhibit 1.
[3] Exhibit 4.
[4] Exhibit 5.
[5] M.C.I. v. Zeng, Guanqiu (F.C.A., no. A-275 09); 2010 FCA 118.
[6] Maldonado v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 248 (FCA)(QL), [1980] 2 FC 302 (CA).
[7] Exhibit 2.
[8] Exhibit 7.
[9] Exhibit 3.1.