MB9-11066

RAD File No. / No de dossier de la SAR : MB9-11066 MB9-11067 / MB9-11068 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 13, 2020 Date de la décision Panel Isabelle Parizeau Tribunal Counsel for the persons who are the subject of the appeal Me Felix Fernando Ocana Correa Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX, citizens of Haiti, and their minor daughter, XXXX XXXX XXXX XXXX, a citizen of the United States (the minor appellant), are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claims. [2] The male appellant alleges that he fears he will be killed by criminals from the party in power because of the political opinions he expressed. [3] The RPD did not find the male appellant credible. It identified inconsistencies and contradictions between his written account and his testimony at the hearing. It considered his behaviour to be inconsistent with his fear. It concluded that there was no evidence that the minor appellant would have any fear or face any risk in the United States. [4] The appellants submit that the RPD applied an inappropriate legal test in assessing their fear. It failed to take into account the male appellant's explanations for the omissions, contradictions and inconsistencies. It assessed the evidence incorrectly, and it failed to consider the best interests of the minor appellant. [5] In the view of the Refugee Appeal Division (RAD), the determinative issues for the appellants who are citizens of Haiti are credibility and their prospective fear; for the minor appellant, the determinative issues are her fear of persecution or the risk of harm she would face in her country of citizenship. [6] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [7] On XXXX XXXX XXXX 2014, death threats were allegedly made against the male appellant by criminals from the Parti Haïtien Tèt Kale (PHTK) [Haitian Tèt Kale party]. Later the same day, they allegedly broke into his parents' home while he was out. [8] On XXXX XXXX XXXX 2014, the male appellant allegedly received a call warning him to leave his parents' house immediately, which he did. After he left, his parents were allegedly attacked. [9] The male appellant allegedly left Haiti on XXXX XXXX XXXX 2014, and arrived in the United States at the end of the month. The female appellant was living there already. The appellants got married in the United States in XXXX 2014. The minor appellant was born there in XXXX XXXX. The appellants left the United States and entered Canada on XXXX XXXX XXXX 2017. They claimed refugee protection. The female appellant is basing her claim on that of the male appellant. ANALYSIS [10] The RAD has conducted an independent analysis of all of the evidence, including the recording of the RPD hearing, and has applied the correctness standard.1 No error of law with respect to the applicable test under section 96 [11] The appellants argue that the RPD erred by applying a stricter test than was applicable. It erred in applying the balance of probabilities standard at paragraphs 29, 35 and 42 of its decision. It should have applied the serious possibility or reasonable chance standard since it had decided to examine the claim under section 96 of the Immigration and Refugee Protection Act (IRPA). [12] The RPD concludes at paragraph 29 that the male appellant failed, on a balance of probabilities, to establish his encounter with the criminals in XXXX 2014, and at paragraphs 35 and 42, that he failed to establish the two attacks at his parents' home. [13] The RAD disagrees with the appellants' position. In all three instances, the RPD assessed the evidence presented. In considering the above-mentioned events, the RPD applied the balance of probabilities standard, which is the standard of proof applicable to the assessment of evidence and credibility,2 and which differs from the test applicable to the risk of persecution (that of a reasonable chance of persecution), the aim of which is to determine whether a claimant is a Convention refugee. [14] The RAD is of the opinion that the RPD did not err. Credibility The male appellant failed to establish the encounter with criminals on XXXX XXXX XXXX 2014 [15] The RPD considered that the male appellant had not, on a balance of probabilities, established the encounter with the criminals. The RAD concurs. [16] The male appellant testified that he was not a member of a political party or of any popular movement or organization. However, he shared his political opinions with friends in the neighbourhood. He had begun doing this in 2003 and 2004. He subsequently stopped these activities and then resumed them in 2011. On XXXX XXXX XXXX 2014, he was with friends in the street when criminals from the PHTK allegedly began shouting at them. In his written account, at line 14, the male appellant states that a group of criminals [translation] "made death threats against me."3 [17] According to the appellants, the RPD erred in criticizing the male appellant for not specifically using the expression death threat in his testimony as he had done in his written account. The appellants argue that the RPD erred in not interpreting what the criminals said to the male appellant as threats. It failed to take into account his testimony as a whole. It showed excessive rigour and used a selective approach. The appellants report in their memorandum what the male appellant recounted at the hearing.4 The criminals allegedly said, [translation] "Are you the one badmouthing Tet Kalé?" ... "you better stop talking about Tet Kahlé being in power, because we're in for five years ... whether you like it or not." The words "whether you like it or not" were not an embellishment of his testimony, as the RPD suggested. The appellants question the RPD's assertion, without drawing a conclusion, that the male appellant states in his written account that he was the only one targeted, which gives the threat more significance. [18] The RPD found that the failure to state at the hearing that his life had been threatened undermined the male appellant's credibility. In the RPD's view, the words "whether you like it or not" were added to prop up a weak statement. The RPD would have expected the male appellant to remember his life having been threatened. He had been criticizing the PHTK for years, and this was his first and only encounter with the criminals from the PHTK. The RPD concluded that the male appellant had failed, on a balance of probabilities, to demonstrate that he had had an encounter with criminals from the PHTK. [19] In the RAD's opinion, there is a significant difference between the male appellant's written account and his testimony at the hearing. The RAD shares the RPD's view that what the male appellant reported at the hearing does not constitute death threats. [20] Moreover, having listened to the recording of the RPD hearing, the RAD notes that the male appellant testified that his problems started on XXXX XXXX XXXX 2014, but that he began fearing for his life on XXXX XXXX XXXX 2014.5 If death threats had been made against him on XXXX XXXX XXXX 2014, the RAD would have expected him to testify that he began fearing for his life on that date. When the RPD asked him how he had felt after this exchange, the male appellant stated that he had felt like he was living in a dictatorship where people cannot express their opinions.6 He did not mention being afraid because of the death threats. The RAD also notes that the written account does not contain any of the details the male appellant provided at the hearing regarding his encounter with the criminals. The RAD draws a negative inference from this. [21] The RAD considers the RPD's finding concerning the first incident, that allegedly occurred on XXXX XXXX XXXX 2014, to be correct. The male appellant failed to establish the attack at his home on XXXX XXXX XXXX 2014 [22] The RPD concluded that the male appellant had failed, on a balance of probabilities, to establish that an attack occurred at his home on XXXX XXXX XXXX 2014. The RAD agrees with this conclusion. The male appellant fled before the criminals arrived at his parents' home [23] In his written account,7 at lines 20 to 22, the male appellant describes the incident: [translation] "On XXXX XXXX XXXX 2014, they broke into my parents' house, where I had been living up until then. Fortunately, I barely escaped by going to my friend XXX's place."8 [24] The appellants agree with the RPD that the male appellant's written account does not imply that he escaped after the encounter with the criminals in the context of the first incident on XXXX XXXX. They add that nothing in his testimony implies this either. The male appellant never stated at the hearing that he had sought to escape from the criminals. He testified that he had left to go see a female friend he was in the habit of visiting. The RPD erred in its interpretation of the words [translation] "I barely escaped". As the male appellant explained at the hearing, this meant that if he had returned home, the criminals would have found him there. [25] According to the RPD, the male appellant's written account clearly indicates that his barely escaping to his friend's home took place in the context of the criminals' arrival at his parents' house. The RPD considered that the contradiction between his written account and his testimony was significant. It created inconsistency as to where the male appellant was and what happened on XXXX XXXX. The RPD took into account the written submissions from the claimant's counsel, produced after the RPD hearing, which emphasized that the two events could be considered as a whole. [26] Upon reading the submissions, the RAD did not note that counsel considered the two events of XXXX XXXX, 2014, as a whole. Separately from the RPD's argument in this regard, the RAD is of the view that the words used in the written account do not require any particular analysis. The RAD does not accept the male appellant's explanation and understands from his written account that he managed to get out of the house in time. The RAD draws the same conclusion as the RPD. No satisfactory explanation for the contradiction concerning the timing of the neighbours' arrival [27] Lines 32 to 34 of the male appellant's written account9 read as follows: [translation] "The racket these criminals made when they broke into my parents' house drew the interest of our neighbours, who, also according to my father, gathered in a group around the front door after the attackers left." [28] In their memorandum, the appellants cite an exchange between the RPD and the male appellant about why he had testified that the neighbours had arrived while the criminals were at his parents' home. The appellants maintain that since these events were reported by a third person, it is unreasonable and arbitrary to expect an accurate, nuance-free statement. The contradiction between the written account and the testimony is not significant, given that the male appellant confirmed the significant and dominant elements at the hearing. The correlation drawn by the RPD between the male appellant's statements at the hearing and his memorandum is not supported by any reasoning. [29] The RPD concluded that the two versions of the event were very different since, according to the male appellant's testimony, the neighbours drove the criminals away by throwing rocks at them. The RPD expected the male appellant to recall what his father had told him. It rejected the explanation that the information provided was based on what his father had told him. The RPD also rejected the argument raised by the appellants' counsel in his written submissions that an excessive burden cannot be imposed in relation to evidence conveyed by third parties. It also stated that its expectations were not unreasonable, as the male appellant was living with his parents and they had witnessed the event. Moreover, the male appellant has 13 years of schooling. [30] The RAD acknowledges that a person's level of education is not a guarantee of the quality of their memory. However, the RAD noted the difference between the two versions upon listening to the recording of the hearing and, in its view, this difference is significant. [31] The RAD concludes that the RPD correctly concluded that the male appellant had failed to demonstrate, on a balance of probabilities, that an attack took place at his home on XXXX XXXX XXXX 2014. The male appellant's behaviour was inconsistent with his fear [32] The RPD concluded that the male appellant's behaviour was not consistent with his fear. The RAD draws the same conclusion. Rebellious conduct [33] The appellants are of the opinion that, because the RPD considered the male appellant to be a rebel, it disregarded important parts of his testimony and found that he was not credible. Moreover, nothing in the male appellant's testimony justified such a label, which describes a person who revolts. By characterizing the male appellant as such, the RPD was unable to review the claim in an objective and unbiased manner. It is perplexing that the RPD would consider that the profile of a rebel was inconsistent with the fact that the male appellant did not move away or go to the authorities for help following an attack at his home. [34] In the RPD's opinion, the male appellant's behaviour was not consistent with his fear. He had explained that after XXXX XXXX XXXX 2014, he had stopped expressing his opinions in public and had limited his movements. The RPD considered that the claimant's failure to move away and to go to the authorities for help after being targeted twice on XXXX XXXX XXXX 2014, went against his profile as a [translation] "rebel". [35] The RAD notes that in the RPD's decision, which was written in English, it used the word "defiant."10 According to dictionaries, this word would be more accurately translated into French as "provocateur" [confrontational] than "rebelle" [rebellious]. Therefore, and independently of any characterization of the male appellant, the RAD concurs with the RPD that the male appellant's behaviour was not consistent with his fear for the reasons that follow. No police complaint following the incidents on XXXX XXXX XXXX 2014, and failure to take measures to protect himself [36] The appellants submit that the male appellant did not file a police complaint because he believed that the criminals were watching him. However, he did stop expressing his opinions and he limited his movements. He did not move away because that would have meant being apart from his family. [37] According to the male appellant's written account11 at lines 29 to 31, the criminals told his father [translation] "that they were going to find me regardless, that I couldn't hide in Haiti forever and that once I was caught, I would not live to tell anyone." The RPD found that the male appellant's failure to take decisive measures undermined his credibility. [38] The RAD agrees. The male appellant reported that during the two incidents on XXXX XXXX XXXX 2014, the criminals made death threats against him. At lines 25 to 28 of his written account,12 the male appellant describes their arrival at his parents' home: [translation] "He told me that six to eight men carrying sticks barged into the house. They said they were from the PHTK and were looking for me to teach me to respect authority in the only way that I could supposedly understand: by physically assaulting me." When the RPD asked what measures he had taken to protect himself and his parents, the male appellant responded that he believed that the criminals would not come back and may simply have wanted to show that they were going to do something.13 In light of the threats allegedly made against the male appellant, the RAD does not consider his behaviour to be consistent. The criminals knew where he lived and could easily find him. One would have expected him to take measures to go into hiding. In the RAD's opinion, not wanting to be apart from his family is not a satisfactory explanation. Refusal to abandon his family following the incident on XXXX XXXX XXXX 2014 [39] On XXXX XXXX XXXX 2014, the criminals allegedly returned to the home of the male appellant's parents. They allegedly held a knife to his father's throat and shoved his mother, and made two holes in a wall. On XXXX XXXX, the male appellant allegedly filed a complaint with the court. On XXXX XXXX XXXX a justice of the peace allegedly came to the home to take a report. [40] The appellants submit that the male appellant's decision to continue living with his parents at their home until XXXX XXXX was warranted. He felt responsible for what had happened. Although he was afraid, he did not want to abandon his family. [41] In the RPD's opinion, the male appellant's behaviour is not consistent with his fear. He remained at his parents' home, where he could be found. Holes had been made in the front door and had not been repaired. He had waited until a justice of the peace came to inspect the scene. [42] The RAD is unable to draw a correlation between the male appellant's behaviour and his fear. At the hearing, the male appellant explained14 that the criminals had broken down the door, made two holes in the wall and threatened his parents to make them tell them where he was. Some neighbours allegedly threw rocks. The male appellant did not know when or why they would have done this. Perhaps they were trying to help. The male appellant testified15 that he had not filed a police complaint immediately because he believed that they would not be able to do anything. The police allegedly came with the justice of the peace on XXXX XXXX. [43] The RAD considers the male appellant's conduct to be inconsistent. He claims that criminals threatened to kill him and that his parents were the victims of an initial home invasion followed by a second incident during which they were assaulted. The criminals were allegedly looking for him. Despite all of this, the male appellant continued living with his parents, did not call the police, and filed a complaint with a justice of the peace only after the second incident. In the RAD's opinion, the explanation that he remained at home because he did not want to abandon his family is not satisfactory. [44] Moreover, the RAD notes that in response to question 2(d)16 in his Basis of Claim Form (BOC Form), the male appellant states that he went to XXXX following the incident on XXXX XXXX XXXX 2014, and lived there with his grandparents, but could not stay long because the criminals were going to find him sooner or later. This contradicts the account he gave at the hearing, according to which he went to XXXX with his family on XXXX XXXX. The RAD draws a negative inference concerning the male appellant's credibility. Change of residence between XXXX XXXX XXXX 2014, and his departure from Haiti and application for asylum in the United States [45] The appellants are of the opinion that the RPD should have considered the actions taken by the male appellant after XXXX XXXX XXXX 2014. He allegedly lived with his family in XXXX until he left Haiti on XXXX XXXX XXXX 2014. During this time, he allegedly applied for a visa for Mexico. He allegedly transited through Mexico, entered the United States and applied for asylum on XXXX XXXX. According to the appellants, these actions demonstrate the male appellant's fear. [46] Applying for a Mexican visa and then applying for asylum in the United States is behaviour that could be consistent with the male appellant's fear. However, like the RPD, the RAD concludes that, as analyzed above, the male appellant's behaviour was inconsistent with his fear from XXXX XXXX XXXX 2014, onward. Consequently, in the RAD's opinion, the RPD did not err in not taking into account the male appellant's actions after XXXX XXXX XXXX 2014, in view of its finding that his conduct was inconsistent with his fear as of XXXX XXXX XXXX 2014. No weight given to the extract of the minutes of the court registry dated XXXX XXXX XXXX 2014 [47] According to the appellants, the RPD erred in giving this document no weight solely because it does not contain the male appellant's signature. Documents from foreign government authorities are presumed to be genuine. It was unreasonable to ask the male appellant to explain why his signature was missing. This one anomaly identified by the RPD cannot invalidate the document's authenticity. [48] The RPD considered the appellants' argument that state-issued documents are valid. However, it concluded that the presumption had been rebutted by the obvious error that the signature is missing. [49] The RAD examined the document17 carefully and gives it little weight. As the RPD noted, the male appellant's signature does not appear, even though the document indicates [translation] "Signature required upon filing with us," which implies that the male appellant should have signed it. The RAD notes other anomalies as well. The document describes the male appellant as the owner of his parents' home. This may simply be an error, but there is more. The description of the events differs from the description provided by the male appellant. The male appellant's parents allegedly stated that, [translation] "they really roughed me up and they hit us," whereas according to the male appellant, his father had a knife held to his throat and his mother was shoved. The document goes on to indicate, [translation] "And Your Honour, it was thanks to our neighbours and people in the area who came to help and called the police that the criminals fled." The male appellant testified that he did not contact the police.18 There is no evidence that his parents or the neighbours did so. Lastly, the male appellant testified that the police had come with the justice of the peace, but there is no mention of this in the extract of the registry minutes. [50] Like the RPD, the RAD concludes that the extract of the registry minutes does not corroborate the allegation that criminals came to the home of the male appellant's parents on XXXX XXXX XXXX 2014. Lack of knowledge about the political structure [51] The appellants consider it abusive that the RPD criticized the male appellant for being unable to name or describe any influential senior members of the PHTK in his community. The RPD failed to consider the male appellant's testimony that he did not belong to any political parties or popular organizations. Although the RPD noted that this factor was not determinative on its own, it notes the implausibility of the male appellant's lack of knowledge to support its finding that he was not credible. [52] The RPD found it surprising that the male appellant, having developed an awareness of social issues and a political conscience, was not familiar with the political dynamics in his own community. In its view, the male appellant's lack of knowledge contradicts the alleged profile of a socially responsible person. [53] The RAD agrees with the appellants that there is a difference between discussing national political and governance issues and knowing the names of the members of the party in power in one's community. All the same, the RAD is surprised that the male appellant would not know any of the leaders of the party in power in his community if he had been criticizing that party's actions for years. However, the RAD makes no adverse findings on this basis. [54] In view of all of the evidence analyzed above, the RAD considers that the RPD was correct in finding that the male appellant was not a credible witness. Prospective risk [55] During his testimony, the male appellant explained that his sister had told him that when she was living in XXXX, she had been approached by a stranger, who asked her where the male appellant was. The male appellant did not know the date of this incident, but it allegedly occurred after he had left Haiti. [56] The appellants acknowledge that the male appellant did not mention this incident in his BOC Form. However, they maintain that he gave a full description of it at the hearing. In their memorandum, the appellants place the encounter between XXXX XXXX XXXX 2014, when the male appellant left Haiti, and XXXX 2015, when the male appellant's mother, sister and brother left for the Dominican Republic. The fact that the male appellant's sister reported being afraid ties the incident to the family's departure from Haiti. [57] Stating that everything that had happened since his departure in 2014 had been told to him by his family was not, in the RPD's opinion, a reasonable explanation for his failure to mention the incident in his BOC Form. The RPD would have expected an event of this nature to be mentioned in his BOC Form, given that the occurrence of subsequent incidents is important to assessing a claimant's prospective risk. The male appellant had stated at the start of the hearing that he had nothing to add to his BOC Form. [58] Given that the male appellant confirmed at the start of the hearing that his BOC Form was complete, true, correct and up to date, the RAD draws a negative credibility inference from his failure to mention his sister's encounter. Moreover, the RAD does not accept the appellants' argument that the departure of the male appellant's mother, sister and brother from Haiti was connected to this encounter. There is no evidence to support this inference. [59] The RAD concludes that the RPD was correct in not accepting the male appellant's testimony about an alleged encounter between his sister and a stranger. The RAD is of the opinion that the male appellant failed to establish that he would face a prospective risk. Minor appellant who is citizen of United States [60] According to the appellants, the RPD's decision indicates that the minor appellant could return to the United States, since she did not demonstrate that she would be persecuted there on a Convention ground or that she would face a risk of harm. The appellants argue that the best interests of the child are enshrined in multiple sections of the IRPA, as well as in the case law. It is obviously in the best interests of the child for her to remain with her biological parents and her brother, who was born in Canada in 2018. The RPD showed a lack of sensitivity. [61] The RPD found that there was no evidence of a fear or risk in the United States. This conclusion is not being challenged. The RAD does not note any errors in this regard. [62] Having listened to the recording of the RPD hearing, the RAD notes that the male appellant testified19 that the minor appellant should stay with her parents. If they had to leave her in the United States, she would be placed with a family with children and they would have no contact with her. [63] The IRPA does not empower the RPD or the RAD to make decisions based on humanitarian and compassionate considerations, nor is it their job to determine whether it is in the best interests of a child to stay in Canada or return to her country of citizenship. The role of the RPD, and that of the RAD on appeal, is to determine whether a claimant faces a serious possibility of persecution or whether, on a balance of probabilities, they would be subjected to cruel and unusual treatment or punishment or to a danger of torture should they return to their country of citizenship. [64] The argument concerning the minor appellant's return to the United States seems premature in that the appellants have not established, on a balance of probabilities, that the minor appellant could be returned there. [65] The principle of family unity is not a basis for granting Convention refugee status. This is consistent with paragraph 184 of the United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, which states that it would be inappropriate to grant refugee status to a family member who may be a citizen of another country and may enjoy that country's protection: If the head of a family meets the criteria of the definition, his dependants are normally granted refugee status according to the principle of family unity. It is obvious, however, that formal refugee status should not be granted to a dependant if this is incompatible with his personal legal status. Thus, a dependant member of a refugee family may be a national of the country of asylum or of another country, and may enjoy that country's protection. To grant him refugee status in such circumstances would not be called for. [66] The RAD is of the opinion that the RPD was correct to conclude that the minor appellant failed to demonstrate, on a balance of probabilities, that she would have a well-founded fear of persecution or would face a risk to her life or a risk of cruel and unusual treatment or punishment should she return to the United States. [67] The RAD concludes that the RPD's decision is correct. CONCLUSION [68] The RAD dismisses the appeal and confirms the RPD's determination that the appellants are neither Convention refugees nor persons in need of protection. Isabelle Parizeau Isabelle Parizeau January 13, 2020 Date IRB translation Original language: French 1 Canada v. Huruglica, 2016 FCA 93. 2. Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.). 3 Refugee Protection Division (RPD) record, at pp. 33 and 34. 4 Appellant's record, at pp. 19 and 20. 5 Audio recording of the RPD hearing, approximately between 0:46:04 and 0:47:00. 6 Ibid., approximately between 1:42:40 and 1:43:57. 7 Supra, endnote 3. 8 The name of the male appellant's friend is mentioned in the written account. 9 Supra, endnote 3. 10 RPD record, at p. 21. 11 Supra, endnote 3. 12 Supra, endnote 3. 13 Audio recording of the RPD hearing, approximately between 2:12:54 and 2:13:44. 14 Ibid., approximately between 2:19:24 and 2:22:38. 15 Ibid., approximately between 2:28:28 and 2:29:53. 16 RPD record, at p. 36. 17 RPD record, at p. 185. 18 Supra, endnote 15. 19 Audio recording of the RPD hearing, approximately between 2:53:34 and 2:55:00. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-11066 MB9-11067 / MB9-11068 RAD.25.02 (April 4, 2019) Disponible en français 14 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 (April 4, 2019) Disponible en français