MB9-29400

RAD File No. / No de dossier de la SAR : MB9-29400 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision November 9, 2020 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal François Jean Denis Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated November 20, 2019, rejecting his refugee protection claim on the basis of credibility. [2] The appellant alleges that the RPD erred in its assessment of his credibility for the following reasons:1 a. The RPD was over-vigilant in its analysis. b. The RPD was too quick to apply North American logic and reasoning to the appellant's behaviour. c. The RPD was highly selective. d. The RPD went too far in refusing to assign probative value to the documents. e. The RPD's decision is fundamentally flawed because it conducted a microscopic examination of the evidence and failed to consider the evidence in its entirety. [3] The appellant is requesting that the Refugee Appeal Division (RAD) allow his appeal, set aside the RPD's determination and recognize him as a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees (the Convention), or refer the matter to the RPD for re-determination of the refugee protection claim.2 [4] The determinative issue for the RAD, as it was for the RPD, is credibility. DETERMINATION [5] For the reasons set out below, the appeal is dismissed. The RAD agrees with the RPD's conclusion that the appellant has not established a serious possibility of persecution on a Convention ground or, on a balance of probabilities, a risk of harm that would make him a person in need of protection in relation to his country of origin, Haiti. BACKGROUND [6] In his amended Basis of Claim Form (BOC Form), the appellant alleges that he volunteered with a committee in his city, Gressier, that had been raising public awareness about the community's problems since its inception in 2011. [7] In 2015, the appellant was approached by XXXX XXXX to support him as a candidate for XXXX of Gressier, while the appellant preferred to support his childhood friend, XXXX XXXX. [8] XXXX XXXX XXXX, who became XXXX XXXX XXXX XXXX XXXX decided to take revenge on the appellant for his failure to cooperate. [9] On June 6, 2016, after several threats, some of XXXX XXXX XXXX supporters fired shots at the appellant's house. The appellant sought refuge at a neighbour's home. [10] On September 2, 2016, two armed criminals broke into the appellant's house, threatened his wife, and took her telephone and some of the appellant's documents. [11] The appellant left to spend some time in the United States, hoping that things would calm down. [12] Back in Haiti, he hid out in the city of Saint Louis, but he continued to receive threatening calls. [13] On XXXX XXXX XXXX 2017, the appellant left again for the United States. He did not claim asylum because of President Trump's policies. [14] On XXXX XXXX XXXX 2017, he crossed the Canadian border illegally and claimed refugee protection in Canada. [15] His wife also had to leave Haiti for the United States in XXXX 2018. STANDARD OF REVIEW [16] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.3 The RAD's role is to determine whether the RPD erred, as alleged by the appellant. [17] The RAD applied the correctness standard in this case. ANALYSIS [18] In his memorandum, the appellant lists his criticisms of the RPD decision in order based on the contested paragraphs. In the interests of clarity and simplicity, the RAD will follow the same approach. Paragraphs 13 and 14 of the Refugee Protection Division's decision (appellant's civic engagement) [19] The RPD concluded that the appellant had provided few details regarding his civic activities. He was able to describe them only in vague terms, with nothing specific or concrete about his work in the field. Throughout his testimony, he never provided details on the committee that he ran, his activities or the role he played in it, but simply stated that he raised public awareness. A vague description is unsatisfactory for an activist who allegedly spent years doing community organizing. This undermines his credibility, since his alleged persecution is based on his civic engagement.4 [20] The RPD also noted that the appellant was unable to describe or produce documents relating to his civic activities. He simply explained that the criminals had stolen them.5 [21] The appellant argues that he provided all the essential details about his activities. His work on a committee in Haiti is not comparable to that of an activist in Canada, and the RPD applied North American logic and reasoning to his case by requiring details expected from a Canadian activist. The appellant adds that the RAD, upon listening to the recording again, should conclude that the information provided was sufficient to explain his work and that, therefore, the RPD went too far by drawing a negative inference.6 [22] The RAD cannot accept this argument. Despite the requirements set out in the Refugee Appeal Division Rules, the appellant failed to provide complete and detailed submissions as to when and how the RPD applied North American logic and reasoning. Most of the RPD's conclusions are based on major inconsistencies noted in the appellant's testimony and a lack of evidence that could corroborate his civic activities. [23] The inconsistencies raised and the appellant's evasive answers, despite the RPD's pressing to get answers to its questions, directly touch on the central aspects of the refugee protection claim. [24] From listening to the recording of the hearing, it is clear that the appellant's testimony was confusing, inconsistent and sometimes contradictory with regard to central aspects of his claim. Throughout the hearing, when the RPD asked for explanations for the inconsistencies, it was careful to repeat its questions several times and to recapitulate what the appellant should have understood from these explanations. The appellant's responses remained evasive, repetitive and unconvincing, and his testimony meandering and evasive. [25] Like the RPD, the RAD finds that the appellant's explanations are unsatisfactory and undermine his credibility. Paragraph 15 of the Refugee Protection Division's decision (information on the residents of Gressier) [26] The RPD noted that, although the appellant was XXXX XXXX XXXX XXXX, he had no idea as to the number of residents in his city. It was the RPD, based on the documentary evidence, that informed him that Gressier has 33,000 residents. This is an important detail when one thinks about the municipal elections and the influence that the appellant could have had on the elections.7 [27] The appellant argues that the RPD spent too much time on an insignificant detail in order to draw a negative inference as to his credibility. The RPD relied on unconfirmed information from Wikipedia. The size of the population has nothing to do with the influence of a leader in the area. The RPD's sole concern was to discredit the appellant.8 [28] Although the RAD agrees with the appellant that this detail is insignificant, the RPD did not specifically draw a negative inference as to his credibility based solely on this fact. [29] In fact, it is important to look at the sequence of ideas in the RPD's reasons. Paragraph 15 is part of a series of conclusions that lists a succession of inconsistencies and gaps in the appellant's testimony. [30] Moreover, the RPD clearly indicates at paragraph 12 that, in his written account and during his oral testimony, the appellant stated that he was very influential in his community, which explains why XXXX XXXX XXXX needed his help so badly. This is a pivotal element in his story of persecution. [31] After questioning the appellant about a number of allegations relating to his civic engagement and his influence on voters, the RPD had doubts as to the existence of this engagement, which the appellant claims began in 2011. [32] The RPD does not state at paragraph 15 that it drew a negative inference regarding the appellant's credibility, as indicated in the memorandum. It was simply surprised that a person working at city hall who was highly influential in the community would have no idea as to the number of residents in their community. The RPD merely described this fact as an [translation] "important detail" in relation to the elections and the influence the appellant claims to have had. Paragraphs 16 and 17 of the Refugee Protection Division's reasons (XXXX XXXX XXXX revenge) [33] The RPD concluded that the desire for revenge on the part of XXXX XXXX XXXX, the main persecutor, who ended up XXXX XXXX XXXX without the appellant's help, was poorly explained. Why would he want to harm the appellant years later and when the appellant was of no use to him?9 The appellant claims that XXXX XXXX XXXX wants to be repaid. However, there is no debt at issue. The latter allegedly did nothing more than contribute financially to the committee's activities.10 [34] The appellant argues that the RPD erred in drawing a negative inference on this point. The RPD, which has specialized knowledge regarding Haiti, appears to have forgotten that in this country people seek revenge for romantic relationships, political rivalries, even trivial matters. He refers to Tab 7.6 of the National Documentation Package (NDP) on Haiti to argue that revenge is firmly entrenched in the mentality of this country. Since the appellant refused to collaborate with XXXX XXXX XXXX, the latter will seek revenge, and the fact that he became a magistrate will clear the way for him to carry out targeted attacks.11 [35] The RAD disagrees. [36] An assessment of prospective risk must be based on a careful review of the evidence and the reasonable conclusions that can be drawn from it. Although the evidence contained in the NDP on Haiti states that political conflicts can often lead to acts of revenge, there must still be evidence demonstrating that the alleged agents of persecution would be interested in and motivated to persecute the claimant or cause him harm, especially after so many years. [37] According to the NDP, the people most vulnerable to political revenge are often political figures, their supporters and their colleagues, community leaders, journalists, people working for non-governmental organizations and small-business leaders.12 [38] According to the evidence in the NDP on Haiti, the likelihood of an act of revenge occurring decreases over time and depends on the problem that initially triggered the desire for revenge, the geographic distance and the power of the armed group threatening revenge.13 [39] The source cited on this topic in the Response to Information Request, at Tab 7.6 of the NDP on Haiti, provided a hypothetical example of a person whose testimony leads to the imprisonment of a gang leader; this person moves to another part of the country and stops working against the gang. According to the source, in that case, the threat of revenge should have completely disappeared within 5 or 10 years.14 [40] There is no credible evidence demonstrating that XXXX XXXX XXXX continued to bother the appellant's family, and the appellant confirmed at the hearing that his family members, who still live in Haiti, had never been attacked or received threatening telephone calls, as is evident from the following exchange:15 [Translation] RPD: So, you have family members who are still in Haiti. Appellant: Yes. RPD: Are they bothered by your persecutors? Appellant: No, I was the one who was the problem, and they don't live in the same area. [41] The RAD determines that the RPD did not err in its conclusion. Paragraphs 18 and 19 and the Refugee Protection Division's reasons (murder attempt on June 6, 2016) [42] The RPD notes that the major element in support of the refugee protection claim is based on his allegation that he was the subject of a murder attempt on June 6, 2016. The appellant states in both his written account and his testimony that XXXX XXXX XXXX men moved towards him, threatening him with weapons at close range and ordering him to remain standing. He ran away to hide at a neighbour's house. When asked about this, the appellant testified that, to get away from his assailants, he went inside his house and then escaped out the back before seeking refuge at his neighbour's house.16 [43] The RPD concluded that this incident was completely implausible and that determined killers could have shot and killed the appellant at close range or run after him as soon as he went inside his house. The RPD therefore concluded that the appellant was not the victim of a murder attempt as he claims and that he made up this incident to support his refugee protection claim.17 [44] The appellant argues that the RPD went from supposition to supposition in concluding that this fact was used instead to embellish his story. The RPD was over-vigilant regarding this element. The appellant argues that he accurately recounted what had happened. He had the time to escape because he had the presence of mind to run away. The RPD did not ask any questions about the distance between the houses and chose to conclude that this incident was implausible. This interpretation of the appellant's explanations is incorrect.18 [45] Taking into consideration the Federal Court case law, the RAD is of the opinion that it is true that caution is required when making implausibility findings.19 [46] The RPD noted inconsistencies in the central aspects of the appellant's claim, especially concerning the attempt to kill the appellant on June 6, 2016, and whether it actually took place. [47] In response to questions about this, the appellant's answers were evasive, inconsistent and unsatisfactory, as can be seen in the following exchange:20 [Translation] RPD: When you say that you were the victim of a murder attempt, could you tell me more about what happened? Appellant: The first attack that I received by phone. RPD: I'm talking about the murder attempt on June 6, 2016. Appellant: It was with XXXX and XXXX. I was sitting in front of my house, then I saw Hilaire, XXXX and then a third person, XXXX, heading towards me. They had already warned me on the phone that they were going to find me and settle the score regardless of the outcome of the election. When they showed up, I got up to leave, but they pointed a gun at me and I had to remain standing and I still ran, but they shot at me. I jumped over something at a neighbour's house, where I went to hide. RPD: They didn't go to the neighbour's house? Appellant: I went to hide but they didn't see where I went to hide. RPD: You're in front of your house, they show up, they threaten you with a handgun. Appellant: When I saw them in the distance, I assumed they were coming after me, I was sitting, I got up. They pulled out their guns and told me to remain standing there, but I ran away. RPD: But where to? Appellant: I went to a neighbour's house, to my neighbours' place, I slept at their place. The next day ... RPD: But they didn't follow you into the neighbours' house. Appellant: I hid. RPD: You're standing there and you start to run, but they can run after you? Appellant: No, they didn't have time, because I ran inside my house, I went out the back and I jumped out the back and I ran away. [48] The RAD is of the opinion that the incident as related by the appellant raises serious questions about whether it is true. [49] This implausibility was a valid reason for the RPD to doubt the truthfulness of the facts alleged by the appellant. The RAD is therefore of the opinion that the RPD did not err in casting aside the presumption that, when a refugee protection claimant swears that certain facts are true, they are true unless there are valid reasons to doubt their truthfulness. [50] That said, the RAD reiterates that "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application [...]."21 The RAD is of the opinion that the RPD is entitled to make findings based on implausibility, common sense and rationality.22 The lack of credibility on an important aspect of the claim can amount to a finding that there is no credible evidence on which the claim can be based.23 Paragraphs 20, 22 and 23 (the appellant's family in Haiti is not bothered) [51] The RPD asked the appellant why his family members, who are still in Haiti, have not been bothered by the criminals. His responses, namely that he was the problem and that his family did not live in the same area, were unsatisfactory. So, too, were his explanations about why the criminals who grabbed his wife's telephone continued to call her and why he did not change the telephone number to protect himself from his persecutors. [52] The RPD drew negative inferences from these inconsistencies and contradictions and gave no weight to the explanations provided. [53] Concerning his family members, who have not been bothered, the appellant argues that this question was asked to mislead him and that it contradicts the question about his wife, who continued to receive threatening calls from the criminals. The appellant is asking the RAD to dismiss these contradictory conclusions.24 [54] The RAD disagrees. [55] The context of the two questions is different. [56] The purpose of the first question, concerning his family members, was to assess the appellant's prospective risk in order to determine his persecutors' motivation and interest in threatening him. He testified that the criminals have never bothered or threatened his family members, as can be seen in the following exchange:25 [Translation] RAD: So, you have other family members who are still in Haiti? Appellant: Yes. RAD: Are they bothered by your persecutors? Appellant: No, I was the one who was the problem, and they don't live in the same area. [57] The second question, which relates to his wife, was intended to verify the contradiction in his written account, since the appellant writes at paragraph 13 of his amended account: [translation] "On September 2, 2016, at around 10 p.m., two armed criminals broke into my house while I was away and grabbed my wife's telephone."26 At paragraph 17 of the same account, the appellant writes: [translation] "On May 3, 2017, at around 4 p.m., my wife received a threatening phone call." [58] This contradiction was confirmed during the hearing, as can be seen from the following exchange:27 [Translation] RPD: You state that your wife received threatening phone calls? Appellant: Yes. RPD: They called her on her telephone? Appellant: Yes. RPD: But elsewhere in your account you state that your persecutors grabbed her telephone? Appellant: Yes. They took it on September 2, when they made the threat. RPD: Right, but how were they able to call her later if they had her telephone? Appellant: Even though they took the phone, you can get a SIM card at the company to get another phone with the same number. RPD: Yes, but why wouldn't your wife change her phone number? Appellant: All her contacts, her things are on that card. RPD: But she no longer has a telephone; it went with the card. Appellant: She went to the company with the paper for the phone to get a SIM card. [59] The appellant's arguments concerning a possible contradiction in the RPD's conclusions are without merit. [60] The RAD is of the opinion that the RPD did not err in its conclusions. Paragraph 21 of the Refugee Protection Division's reasons (appellant's weapon) [61] The RPD questioned the appellant about the weapon he was authorized to carry as a security guard; the appellant was unable to state what model it was. The RPD concluded that, although this was not determinative, it was still surprising that a bodyguard would know so little about his weapon.28 [62] The appellant argues that the RPD continued its efforts to discredit him by talking about the weapon that the appellant carried as part of his job, unnecessarily adding another negative aspect to his credibility.29 [63] The RAD is of the opinion that the RPD erred in this conclusion. It is unnecessary, irrelevant and not connected to the refugee protection claim. However, this error is not determinative to the point of setting aside the RPD's determination. Paragraphs 24 to 28 (the appellant's trips to the United States) [64] The RPD drew a negative inference from the appellant's omissions in his written account concerning his many trips to the United States without ever claiming asylum in that country. The appellant reported only one trip to the United States in his first BOC Form but two trips in the amended BOC Form, and the appellant testified during the hearing that he had made four trips.30 [65] The appellant admits that he could have acted differently. He should have claimed asylum at the first opportunity. That was not his understanding of things. On this point, he is seeking the benefit of the doubt and believes that this element alone is not sufficient to completely undermine his credibility.31 [66] The RAD supports the RPD's conclusion and cannot accept the appellant's argument. This behaviour is inconsistent with the persecution, risks and threats the appellant alleges in Haiti in light of the multiple return trips between Haiti and the United States. [67] The benefit of the doubt cannot be given, because, as stated above, this is not the only credibility issue. [68] The RPD concluded its decision by asserting that it did not believe anything about the appellant's story of persecution, that this story is a fabrication that failed to stand up to analysis and that the appellant did not discharge his burden of proof. [69] The RAD is of the opinion that the RPD did not err in its conclusion. The appellant did not establish his credibility or demonstrate that he has the profile of a person who would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment in his country, Haiti. [70] The RPD's decision is correct. CONCLUSION [71] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, the RAD dismisses the appeal and confirms the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Mokhtar Lamani Mokhtar Lamani November 9, 2020 Date IRB translation Original language: French 1 P-2, appellant's record, appellant's memorandum, paragraph 2. 2 Ibid., paragraph 5. 3 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 4 SPR-1, Refugee Protection Division (RPD) record, RPD reasons, paragraph 13. 5 Ibid., paragraph 14. 6 P-2, appellant's record, appellant's memorandum, last paragraph of page 21. 7 SPR-1, RPD record, RPD reasons, paragraph 15. 8 P-2, appellant's record, appellant's memorandum, first section of page 22. 9 SPR-1, RPD record, RPD reasons, paragraph 16. 10 Ibid. paragraph 17. 11 P-2, appellant's record, appellant's memorandum, second section of page 22. 12 SPR-1, National Documentation Package (NDP) on Haiti (June 28, 2019), Tab 7.6: Response to Information Request HTI106291.FE, Immigration and Refugee Board of Canada, section 1.4. 13 Ibid. NDP on Haiti (June 28, 2019), Tab 7.6, page 5. 14 Ibid., NDP on Haiti (June 28, 2019), Tab 7.6, section 1.3. 15 Recording of the RPD hearing held on October 9, 2019, 00.39.21 et seq. 16 SPR-1, RPD record, RPD reasons, paragraph 18. 17 Ibid., paragraph 19. 18 P-2, appellant's record, appellant's memorandum, third section of page 22. 19 Diaz Puentes v. Canada (MCI), No. IMM-6022-06, Campbell, 2007 FC 1335, paragraph 16. 20 Recording of the RPD hearing on October 9, 2019, 00.45.45 et seq. 21 Garcia Arreaga v. Canada (MCI), 2013 FC 977, at paragraph 45. 22 Laszlo v. Canada (M.C.I.), 2005 FC 456, at paragraph 11. 23 Hernandez Cortes v. Canada (MCI), 2009 FC 583, at paragraph 30. 24 P-2, appellant's record, appellant's memorandum, first section of page 23. 25 Recording of the RPD hearing on October 9, 2019, 00.39.24 et seq. 26 SPR-1, RPD record, amended BOC Form, para. 13, at page 12. 27 Recording of the RPD hearing on October 9, 2019, 00.35.30 et seq. 28 SPR-1, RPD record, RPD reasons, paragraph 21. 29 P-2, appellant's record, appellant's memorandum, second section of page 23. 30 SPR-1, RPD record, RPD reasons, paragraph 25. 31 P-2, appellant's record, appellant's memorandum, last section of page 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-29400 RAD.25.02 (January 2020) Disponible en français 13 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 2020) Disponible en français