MB8-10697

RAD File No. / No de dossier de la SAR : MB8-10697 MB8-10698 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 30, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal N/A 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] This appeal was filed by XXXX XXXX, a citizen of Haiti, and her minor son, XXXX XXXX XXXX, a citizen of the United States, against a decision rendered by the Refugee Protection Division (RPD) on April 5, 2018, rejecting their refugee protection claim. [2] The written account submitted essentially concerns the principal appellant. She alleges that she lived in the XXXX neighbourhood in the capital. She claims that she was raped in XXXX 2005 by members of the XXXX armed group and that she subsequently went to live in her fiancé's city in XXXX XXXX XXXX for approximately three years. She left for Mexico and went to the United States in XXXX 2008. She met the father of her son, the male appellant. She married and divorced before arriving at our border on XXXX XXXX, 2017. She had a US document entitled Temporary Protected Status, which enabled her to work and study. Since she was afraid of returning to Haiti, she chose to come to Canada. She has brothers and sisters living outside of Haiti, including one sister in Canada. [3] The RPD rejected the appellants' refugee protection claims for lack of credibility. [4] The appellants are asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to substitute its own determination, or to refer the matter to the RPD for re-determination by a differently constituted panel. [5] The Minister's representative did not intervene on appeal. The RAD appointed the female appellant as the designated representative of her minor son. [6] On appeal, the appellants submit the following arguments: 1. They are of the opinion that the RPD rendered a decision based on erroneous findings of fact and law that it made in a capricious manner or without regard for the evidence; 2. They are of the opinion that the RPD erred in law in making its decision; and 3. They are of the opinion that the RPD's decision is reviewable on appeal with respect to its assessment of the relevant and determinative facts. [7] The appellants have not submitted any new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)1 and they did not request that an oral hearing be held under subsection 110(6) of the IRPA. [8] The RAD would like to emphasize that in light of the written account filed, it considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. November 13, 1996. DETERMINATION [9] Under paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination that XXXX XXXX and XXXX XXXX XXXX are not "Convention refugees" or "persons in need of protection" within the meaning of sections 96 and 97 of the IRPA. [10] The appeal is dismissed. SCOPE OF THE APPEAL [11] For questions of fact, of law and of mixed fact and law, the RAD must apply the correctness standard in accordance with Huruglica.2 [12] I conducted an independent assessment of all the evidence on the record, after carefully listening to the hearing, in order to form my own opinion on this refugee protection claim and determine whether the RPD's decision is correct. ANALYSIS [13] After reviewing all the testimonial and documentary evidence on the record, the RAD makes the same finding as the RPD, namely, that the appellants are not credible. [14] The appellants are of the opinion that the RPD failed to properly assess their credibility, which led it to conclude that the appellants would not be persecuted in their country. [15] The appellants' credibility is at the very heart of this case. [16] After listening to the recording of the hearing, it must be noted that the testimony given by the principal appellant (the only person who testified) was difficult and that she failed to directly answer the questions that she was asked. The RPD member asked her the straightforward question of where she was assaulted. She answered that she had been raped, beaten, tied up, etc. The member had to repeat and reformulate the simple question to obtain an answer from her. She finally answered that it was at home. [17] With respect to the first point raised in the memorandum, which is more fully detailed in the arguments submitted, the appellants argue that the inconsistencies and contradictions must be reasonably connected to credibility. The RPD raised some important points in this regard that I will analyze now. [18] The RPD noted a significant contradiction regarding the individuals who participated in the female appellant's rape. In the first part of her testimony, she stated that four people were present during the rape. When asked to provide details, the female appellant stated that two people held her down while two others committed this heinous act. However, a little later in the hearing, the member pointed to the psychologist's report, which indicates that there were four individuals, three of whom forcibly held her down. The difference in the number of people who allegedly committed the rape is significant. She added that two people restrained her, but did not mention that the other person held her down because [translation] "I fought back against them." [19] Like the RPD, the RAD is of the opinion that the central incident was described differently in the written account, at the hearing and to the psychologist. The appellant's own evidence contradicts her testimony. This significantly undermines her credibility. [20] An additional contradiction was noted. The female appellant testified that, after the rape, she did not go to the hospital or file a complaint with the authorities. She stated that she obtained some leaves. She testified that these leaves are effective in cases such as hers. This was a natural remedy that she purchased. The story was different when she met with the psychologist. The evaluation report prepared by the psychologist, Dr. XXXX XXXX, (Exhibit P-2, page 95 of 112 of the record) states at the end of page 2: [translation] "but her neighbours obtained some 'leaves' (see traditional medicine) for her." When confronted with this major contradiction, the female appellant stated that the neighbours took care of her and brought her food, but not the leaves. [21] Once again, her testimony is contradictory. The RAD has no choice but to find her statements inconsistent regarding an extremely significant topic, the aftermath of a rape. This seriously undermines her credibility. [22] The RAD is of the opinion that the RPD did not err in this regard. [23] Another contradiction was raised between the female appellant's testimony and her evidence, the expert report. She indicated that after the rape, she and her fiancé went to stay with his family in XXXX, located in XXXX XXXX XXXX on the hills of the capital, so she could recover. They stayed there for three years. She then left for Mexico. The information contained in the psychologist's report states that the client went into hiding and stayed with some friends in XXXX (a XXXX XXXX XXXX neighbourhood) for a few weeks, that she felt lost and deeply humiliated, and that she began planning her departure from Haiti. [24] When asked to explain this major contradiction between her living in hiding with friends and her and her fiancé living with his family, the female appellant suggested that [translation] "perhaps because we spoke in English, she put it that way." The panel cannot accept such a response since the expert's report indicates that the conversation with the female appellant took place in French and Creole. Her credibility is once again undermined. [25] One point in the memorandum indicates that the inconsistencies and contradictions must be reasonably connected to credibility. The panel agrees with this statement. In the case at hand, the contradictions noted pertain to central elements of the claim. They are not trivial points asserted by the female appellant but rather major contradictions concerning a rape, an incident that would strike at a person's very core. The panel would have expected the facts surrounding the rape to be correctly reported, considering that it is a despicable act and the sole component of the claim. [26] The RAD would like to highlight an argument that it noted in the memorandum. At page 20/22 of the document, it is written that the panel should have been satisfied with the testimonial evidence, and that instead of considering the female appellant's answers, it picked the evidence supporting its own conclusions. In this case, and I repeat that this is after carefully listening to the recording, the RAD is of the opinion that the RPD took note of the female appellant's answers and explanations. It confronted the female appellant with the contradictions and unclear parts in her statements. The RPD considered the female appellant's responses to form an opinion and render its decision. No elements in the RPD's decision were contrived or convoluted. On the contrary, the reasons are accurate and report the testimony provided. The atmosphere in the hearing room was cordial. The member was attentive to the female appellant's needs, asking her simple questions and explaining them. [27] The RAD completely disagrees with the appellants' argument in this respect. [28] The panel did not receive any evidence against the United States for the minor child. [29] For the reasons set out in this decision, the RAD is of the opinion that the RPD rendered the correct decision. REMEDY [30] For these reasons, the RAD confirms the determination of the RPD, that XXXX XXXX and XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the Act. [31] The appeal is dismissed. (Signed) Michel Jobin Me Michel Jobin January 30, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C., 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-10697 MB8-10698 RAD.25.02 (January 2020) Disponible en français 3 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