VC0-00155

RAD File / Dossier de la SAR : VC0-00155 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 Ottawa, ON Appel instruit / entendu à Date of decision April 12, 2021 Date de la décision Panel Christina Harrison Baird Tribunal Counsel for the person who is the subject of the appeal Linda L Mark 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] I dismiss this appeal. XXXX XXXX (Appellant) is a citizen of Haiti. The Appellant appeals a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. He fears that he will be assassinated by members of the Vérité political party, or by corrupt participants in the provision of international aid to Haitian farmers. [2] The determinative issues in this appeal are credibility and sufficiency of evidence. The RPD found that the Appellant had not met his burden of proof because he was not credible. Some of his testimony was speculative, embellished, or contradictory. In addition, the RPD found that the Appellant's selective omission of corroborative evidence, failure to claim asylum in the United States of America (USA), and delay to claim in Canada all undermined his credibility. [3] The Appellant argues that the RPD ignored and misconstrued evidence, causing the panel to err in its assessment of his credibility and his subjective fear of persecution. The Appellant also submits that some RPD findings were speculative. [4] I find that the RPD was correct in its general conclusion about the Appellant's credibility. The Appellant exaggerated his role in exposing corruption in the aid program and provided insufficient independent evidence that his fear of harm by Vérité or others was well-founded. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS The role of the RAD in this appeal is to decide whether the RPD was correct [6] The standard of review for an RPD decision that is before the Refugee Appeal Division (RAD) is correctness unless an exception applies.1 I find that no exception applies in this matter. The RPD was correct that the Appellant did not prove his claim [7] Like the RPD, I find credible the Appellant's claim that he worked in monitoring and evaluation of international aid to farmers in Haiti. However, I agree with the RPD that the Appellant exaggerated his role in exposing corruption. Moreover, I agree that the Appellant selectively omitted his final report from the evidence in his claim. I also find that he exaggerated the value of, or the exclusivity of his access to, certain data from his work. While I do not agree with the RPD about failure to claim refugee protection in the USA or delay to claim in Canada, I find these issues are not determinative. [8] The Appellant's claim is premised on two key allegations: * that the Appellant exposed damaging proof of corruption during his monitoring and in his final evaluation report, which he submitted in August 2017; and * that the Appellant possesses the names and personal information of thousands of beneficiaries of the aid program, the list of which is closely guarded by the program, and heavily sought by the political party Vérité. [9] As a result of these two circumstances related to his employment, the Appellant claims that his life is in danger. The evidence does not show that he faces a serious possibility of persecution linked to his political opinion or his membership in a particular social group. Nor does it show on a balance of probabilities that he faces a risk to his life, a risk of cruel treatment, or a danger of torture. The Appellant did not show that his work to expose corruption places him at risk [10] I find that the Appellant did not adduce sufficient evidence to link his monitoring work or his final evaluation report to any risk that he may face in Haiti. [11] The record does not include the Appellant's final evaluation report. The RPD found that the Appellant had selectively omitted it. The RPD also remarked the absence of evidence to corroborate the content of the Appellant's report, or to support his claim that he is a whistleblower. Moreover, the RPD pointed out that Haiti's international partner identified significant problems with the Appellant's project a year and a half before his final report. The RPD said this could suggest that the corruption had already been exposed. The RPD concluded that there was insufficient credible evidence to establish that the shootings alleged by the Appellant were connected to his work, as opposed to being random, opportunistic criminal acts. The RPD found the Appellant's claim that the Vérité political party orchestrated the shootings was speculative.2 [12] The Appellant submits that the RPD failed to consider his general credibility, that he had made special arrangements to be in the forest where the first shooting took place, that no other people were present, that the gunmen fired directly at him, and that he was working on a project that was going to expose corruption. The Appellant further submits that the RPD gave no consideration to his immediate contact with his employer about the first shooting, to the actions he took afterward to avoid harm, or to the additional shootings that took place at his mother-in-law's house. He argues that his answers were definitive and uncontradicted by other evidence. He testified that he submitted his work computer with the final report on it, and he submits that the unavailability of this sensitive internal document should not undermine his credibility.3 [13] I agree with the RPD that the Appellant should have produced his final report or an excerpt from it for entry into evidence. While I accept that the information therein was sensitive, I find that the Appellant should have taken steps to obtain a copy of this key evidence.4 He could have submitted the report as post-hearing evidence upon understanding the RPD's concern about its absence,5 in the same way he provided the excerpt from the beneficiary list.6 Alternatively, he could have offered this evidence after the rejection of his claim,7 on appeal.8 Even if he had failed to secure a copy of his report, he would nonetheless have been able to show or describe his efforts to obtain it. [14] More importantly, I find that the Appellant should have provided evidence about the political and monetary repercussions of his report. The Appellant testified that he was in contact with his office for months after the first shooting incident. There is no evidence that he viewed his supervisor as corrupt or contact with him as dangerous. Rather, the Appellant's evidence was that the corruption he observed was carried out by project partners who were Haitian, and his supervisor was part of the international staff. In these circumstances, I find the Appellant could have asked his supervisor for some form of corroboration: of the contents and impact of the report, and of the resulting risk and harm to the Appellant. When he appeared before the RPD, the Appellant testified that the project was ongoing and that the budget had been reduced.9 There is no other evidence about how the farmers or the international aid partner received the Appellant's final report, whether it was buried or vaunted, whether changes to personnel or partnerships, or criminal prosecutions resulted. Although the Appellant gave evidence about the report's contents, the RAD has insufficient information about the impact of the report to conclude that the information therein would motivate the harm that the Appellant claims to fear. I agree with the RPD. [15] I have considered the incident when information from the Appellant's project allegedly went missing in XXXX 2016. However, I find that the Appellant's evidence on this allegation is contradictory. In his Basis of Claim, the Appellant wrote that when some documents mysteriously disappeared, he had to move his team's office and data entry team to a more secure location, specifically, to a basement with only one access door and a fireproof metallic closet.10 In contrast, at his RPD hearing, the Appellant testified, "... if that guy could come and take some documents, he could come and put fire in there too, or, I don't know, he can come in and I don't know, destroy them too. So I asked for some measures of security. And it never happened, I have to say it never happened."11 Due to this contradiction, I do not find credible the Appellant's allegation that an incident in XXXX 2016 necessitated improved security measures at his office. [16] Without the final report or other corroboration, there is not enough evidence to persuade the RAD that the Appellant was at risk because of his monitoring and evaluation work and his final report. As the RPD pointed out, there was already a public report dated February 22, 2016, which strongly suggested that corruption was a problem for this aid project. The authors of that report described data from the project as "not accurate, undocumented, and easily manipulated," and the data showed gross divergence between figures given in a quarterly report and those in the project record.12 I accept that these authors were routinely protected with more robust security measures than national staff like the Appellant.13 That is not proof on a balance of probabilities that the Appellant was targeted. The Appellant did not adduce any similar fact evidence about harm to whistleblowers similarly situated to him in Haiti. [17] Finally, I find that there is insufficient evidence that the shooting incident on XXXX XXXX, 2017, was related to the Appellant's work. The Appellant testified that two unidentified men shot at him in a rural place near the border with the Dominican Republic when he was on his way to a meeting. He was wearing his work uniform. The Appellant urges the RAD to consider that his travel plan was displayed at his office14 and his uniform was a visual cue for the assailants. The independent documentary evidence indicates that the border zone is generally insecure,15 a characteristic to which the Appellant himself testified.16 I do not draw a negative inference from the apparent shifts in the Appellant's description of the surroundings,17 since they could be caused by word choice in the Appellant's fourth language, by trauma, or by the passage of time. I find that since the assailants did not give any hint as to their motivation, the shooting is also consistent with the motive of opportunistic robbery. Since the Appellant testified that drivers had the power to decide how far they would drive, and he declines to suggest that his driver was involved in the shooting, I find there is insufficient evidence that an agent of persecution could predict his presence at the shooting location and time on XXXX XXXX, 2017. The evidence does not lead to a conclusion that it is "more likely than not" that the Appellant was targeted by agents of persecution on that date. [18] The RPD was correct that the Appellant has not demonstrated a link between any risk he faces in Haiti and his work. The Appellant did not show that his access to the list of beneficiaries places him at risk [19] I find the Appellant's evidence does not establish the intrinsic value of the list of aid beneficiaries, nor that he had sufficiently exclusive access to it that he would be at risk from members of the political party Vérité. [20] The RPD found that the Appellant was speculating that Vérité, the police or other authorities were behind the shootings of which he and his family members were the subjects. The RPD dismissed the Appellant's evidence that Vérité members had requested him to share the database of aid beneficiaries several times. The RPD reasoned that Vérité had not threatened the Appellant or persisted beyond 2017. The RPD held that the Appellant exaggerated his value as a source of the beneficiary data, since several other employees had access privileges and the Appellant's uncle-a former Minister of Agriculture, a one-time Deputy Chief of Party for the international aid project, and a high-ranking member of Vérité-also could have obtained it. Furthermore, the RPD found that the Appellant gave contradictory, speculative, and evolving testimony about the shootings that allegedly occurred at the home of his ex-wife's mother in XXXX 2018.18 [21] The Appellant argues that in rejecting his claim, the RPD failed to consider the political circumstances of Vérité, which tried and succeeded to halt elections, then led the transition government in XXXX 2016, and was "doing everything to win the legislatives in most of the cities and provinces (Departments)..."19 The Appellant submits that the RPD also gave no consideration to his description of the vehicles that were present at the attack on his ex-wife's mother's home, or that all of the shootings occurred after the requests for the beneficiary list had ceased. He submits that his answers to the RPD about access to the list were definitive and uncontradicted: that he was one of only three or four people who had full access to the beneficiary data and that his uncle, in the role of Deputy Chief of Party, had no access.20,21 [22] I agree with the RPD that the Appellant's allegations about shootings in XXXX 2018 are not substantiated. I do not find that the Appellant's credibility is impugned by his testimony about the residences of his ex-wife. It is clear to me that his ex-wife has moved more than once and has stayed with her mother at more than one home. Moreover, I am satisfied that the Appellant's ex-wife might decline to get involved in his refugee claim. That may be because she is afraid-as the Appellant claims-or for reasons of her own. In my view, this is not material. The Appellant testified that his wife did not see the alleged perpetrators of the shootings on XXXX XXXX XXXX XXXX, 2017. She heard gunfire on XXXX XXXX, and was absent on XXXX XXXX XXXX It was neighbours who described the "XXXX XXXX XXXX XXXX, without a licence plate."22 I find that the RPD was correct to conclude that, without more evidence, the Appellant is speculating that this vehicle must belong to the political party Vérité, and that the gunshots were meant to send a message to him. The Appellant did not direct the RAD to any independent evidence to support these allegations. [23] Moreover, I find that the Appellant has failed to show the intrinsic value of the beneficiary list, which he claimed would be useful for decades to come. Although there is no population census, voter rolls exist.23 The Appellant provided a sample from the beneficiary list, which showed for each beneficiary the name, national identity card (CIN) number, telephone number, sex, community name, and crop type.24 He testified that this data was coveted by political parties because "you don't get a lot of citizen's information, personal information, unless you collect themselves, just like we do in ?his employer? ... unless you're working with the Organization of the American States."25 [24] The independent documentary evidence indicates that the National Identification Office (ONI) is responsible for providing citizens with the CIN and for drawing up the voter rolls. The voter rolls were updated in 2016, with the previous update having occurred in 2005. For the elections on August 9, 2015, November 20, 2016, and January 29, 2017, voter rolls were posted publicly at the voting centres, though they appeared to vary in some cases from the lists being used by poll workers.26 The Appellant suggested that Vérité wanted the aid beneficiary list for "embezzlement and corruption," but he has not indicated why the information in that list would be so valuable to a political party. How were these data different from the rolls that were posted publicly at the polls each election day, given that each beneficiary had a CIN? Even acknowledging that such a list may have been useful prior to the 2016 update, why should it continue to be useful in the future? The Appellant testified that he wanted to submit a video related to an investigation from a senator or an interview with the Director of Citizenship Management, but the video is not part of the record before me.27 I find that the Appellant's testimony was too vague to persuade the RAD that he holds an asset that will bring harm upon him if he returns to Haiti. [25] Finally, I agree with the RPD that the evidence shows the Appellant did not have exclusive access to the beneficiary list. While I would not go so far as to assert that the Appellant's uncle would have easy access, I deduce that if the Appellant showed himself incorruptible, there were other sources to which Vérité could turn for the information they were seeking. I acknowledge that the access may not have been as fulsome or as easy, but according to his own testimony, the access existed nonetheless. Moreover, the Appellant himself suggested that other members of the staff were indeed corruptible.28 This aspect of the evidence does not assist the Appellant to establish a future risk in Haiti. The claim fails under section 96 and section 97 of IRPA [26] Considered as a whole, the Appellant's evidence fails to establish the credibility of his allegations. Therefore, I find there is no serious possibility that the Appellant will face persecution in Haiti related to his political opinion or an opinion imputed to him. [27] The evidence in the record also does not establish that it is more likely than not that the Appellant faces a danger of torture, or a risk to his life, or a risk of cruel and unusual treatment or punishment in Haiti. The burden of proof is a "balance of probabilities" for these additional risks. Since this burden is more onerous than the "serious possibility" burden of proof for persecution, the Appellant has not met his burden for torture, risk to life, or cruel treatment either. The RPD was correct. Failure or delay to claim refugee status is not determinative in this appeal [28] There is no need for me to examine the RPD findings or the Appellant's arguments about his decision not to claim refugee status in the USA or his failure to claim immediately upon entry to Canada. Since I find that the Appellant's credibility is impugned and there is neither a well-founded fear of persecution in the future, nor a risk of harm covered in section 97, the question of subjective fear is not determinative. CONCLUSION [29] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Christina Harrison Baird Christina Harrison Baird April 12, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras. 37, 48, 70, 78 and 103. 2 RPD-1, RPD Reasons, pp. 6-10, paras. 18-39. 3 P-2, Appellant's Record, Memorandum of Argument, pp. 111-121, paras. 10, 12-13, 16-17, and 21-26. 4 RPD Rule 11: "The claimant must provide acceptable documents establishing their identity and other elements of the claim ...." Emphasis added. 5 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, pp. 28-32. 6 RPD-1, RPD Record, Exhibit 5, Excerpt from Beneficiary List, pp. 212-226. 7 RPD-1, RPD Reasons dated December 12, 2019. 8 The law regarding new evidence is found in Subsection 110(4), Immigration and Refugee Protection Act (IRPA) and Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 38 and 44-49. 9 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, p. 53. 10 RPD-1, RPD Record, Exhibit 2, Basis of Claim narrative, pp. 17-20, at 18. 11 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, pp. 47, 55. 12 RPD-1, RPD Record, Exhibit 4, Feed the Future North (AVANSE) Monitoring and Evaluation Assessment Report, pp. 150-156. 13 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, p. 48. 14 Ibid., p. 46. 15 RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP), Haiti, September 30, 2019, tab 7.1: ?The security situation, including crime and kidnappings; measures taken by the government and other stakeholders to fight crime (2014-June 2018), at p. 9. Immigration and Refugee Board of Canada. June 19, 2018. HTI106116.FE. This document is the same in the NDP dated September 1, 2020. 16 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, pp. 39-41. 17 RPD-1, RPD Reasons, pp. 6-10, para. 30. 18 Ibid., paras. 19-23 and 34-39. 19 RPD-1, RPD Record, Exhibit 2, Basis of Claim narrative, pp. 17-20, at 17-18. 20 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, p. 26. 21 P-2, Appellant's Record, Memorandum of Argument, pp. 111-121, paras. 11, 14-15, 18-20. 22 RPD-1, RPD Record, Exhibit 2, Basis of Claim narrative, pp. 17-20, at 19. 23 RPD-1, RPD Record, Exhibit 3, NDP for Haiti, September 30, 2019, tab 4.14: ?Report to the Permanent Council. Electoral Observation Mission - Haiti. General Elections, at pp. 16, 19. Organization of American States. September 12, 2017. This document is the same in the NDP dated September 1, 2020. 24 RPD-1, RPD Record, Exhibit 5, Excerpt from Beneficiary List, pp. 212-226. 25 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, p. 65. 26 RPD-1, RPD Record, Exhibit 3, NDP for Haiti, September 30, 2019, tab 4.14, supra note 23. 27 RPD-1, RPD Record, Transcript of the hearing on October 31, 2019, pp. 65-66. 28 Ibid., p. 66. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-00155 RAD.25.02 (January, 2020) Disponible en français 2 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