MB8-12867

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 File No. / N° de dossier de la SAR: MB8-12867 MB8-12868; MB8-12869 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision July 23, 2019 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Patrizia Ruscio Conseil de la personne en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] XXXX XXXX (the Principal Appellant/PA) is a citizen of Haiti. Her minor children XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX are citizens of the United States (USA). They appeal a decision of the Refugee Protection Division (RPD) rendered on May 3, 2018, denying their claim for refugee protection.1 [2] The Appellants claim to fear bandits who are complicit with the police in Haiti. They submit that the RPD erred by rejecting their claim based on overriding concerns about the credibility of their evidence. [3] After conducting my own analysis of the record, I find that the RPD correctly found that the PA's evidence lacked credibility. Moreover, I dismiss the appeal regarding the two minor children who are both citizens of the USA and have no fear of returning to that country. II. BACKGROUND [4] According to her BOC2 the PA has a post-secondary education and studied journalism. [5] She worked as a XXXX XXXX in a large company where her husband was also the XXXX and XXXX XXXX (XXXX XXXX). As part of his duties, the PA's husband was tasked with doing XXXX XXXX on behalf of the company. [6] On XXXX XXXX, 2013, the PA's husband went to the XXXX to complete a XXXX XXXX. As usual, he was accompanied by a police officer in an armoured car belonging to the company. [7] When three bandits shot at the car, the police officer escorting the PA's husband did not intervene because other police officers were in the vicinity. Following this encounter, the PA's husband immediately made his way to the police when he was intercepted and taken to prison. After spending XXXX months in prison, he was released as a result of the PA's tenacious and proactive intervention. [8] One year later, the PA decided to delve further into her husband's case with the objective of bringing those responsible for the incident to justice. [9] On XXXX XXXX, 2014, armed bandits entered the PA's home. They fired shots, stole money and warned the PA to leave her husband's case alone. [10] However, given that she is a XXXX by training, the PA decided to continue gathering information aimed at solving the case and exposing corruption involving bandits and the police. [11] While a friend was driving the PA to another area of Haiti, their vehicle was sprayed with bullets. [12] On XXXX XXXX, 2016, the PA went to the USA, returning to Haiti on XXXX XXXX, 2017, in order to continue investigating her husband's case. Following her return to Haiti, she took measures to ensure her safety by sleeping in XXXX and staying with her in-laws. [13] On XXXX XXXX, 2017, gunmen broke into the home and fired bullets. They tied up people and forced them to confess the whereabouts of the PA. [14] On XXXX XXXX, 2017, the PA returned to the USA, fearing for her safety. Following her departure, she learned that bandits presented at the airport to find out her travel information. This caused her to realize the high level of complicity that exists between the police and bandits. [15] The Appellants remained in the USA until XXXX XXXX, 2017, at which point they came to Canada and claimed refugee protection. [16] On March 26, 2018, three days before the RPD hearing, the Appellants submitted an amended BOC,3 adding the following information: - In XXXX 2017, the PA's mother in Haiti reportedly received a telephone call from someone claiming to want to recover a commission in the hands of the PA. - On XXXX XXXX XXXX XXXX, 2017, masked individuals invaded the homes of the PA's aunt, a cousin and two friends on a quest to find the PA. - On XXXX XXXX, 2018, masked individuals invaded the homes of her husband's uncle and of a friend. - On XXXX XXXX, 2018, the home of the husband's aunt was invaded by masked individuals and she was tortured to reveal the whereabouts of the PA's husband. Soon after, the PA's husband fled Haiti and sought refuge in Chile. [17] The RPD determined that the Appellants' evidence lacked credibility based on inconsistencies and omissions in the evidence. Moreover, the PA's conduct is incompatible with a person fearing persecution or harm in Haiti. The RPD also dismissed the claim regarding the two minor children noting that there was no evidence that they were at risk in the USA. III. DETERMINATIVE ISSUE [18] The Appellants submit that the RPD erred in the assessment of their credibility. IV. SCOPE OF THE RAD APPEAL [19] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.4 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.5 I have applied the correctness standard in the present case. V. ANALYSIS 1. Credibility [20] For the following reasons, I find that the RPD correctly determined that there are overriding credibility concerns in the present case. Inconsistency in the evidence regarding the husband's role in the company [21] The BOC states that the PA's husband was both the XXXX and XXXX XXXX (XXXX XXXX) of the company where they were both employed. [22] In contrast, the PA testified that her husband was an XXXX in the XXXX XXXX XXXX XXXX and the company XXXX who was responsible for XXXX XXXX. Moreover, the husband's Certificate of Employment indicates that he was an XXXX XXXX assigned to the XXXX XXXX XXXX XXXX.6 [23] When challenged by the RPD to explain this inconsistency, the PA testified that she brought this discrepancy to the attention of the translator who stated that there is no difference between the terms "XXXX" and "XXXX". [24] The RPD found the PA's explanation for the inconsistency is not well-explained. First, it is unreasonable that a person working in the field of translation would not differentiate between the term "XXXX" and "XXXX". Second, the RPD noted that the translator had no interest in distorting the BOC narrative. Third, while the PA alleges that her husband was also the company XXXX tasked with making XXXX XXXX, there is no mention of this in his Certificate of Employment. Most notably, the PA's Certificate of Employment identifies a different person as the company XXXX.7 [25] The RPD concluded that this inconsistency undermines the credibility of the PA's evidence that her husband occupied a high-level position at a company in Haiti where he was also the accountant in charge of XXXX XXXX. [26] On appeal, it is submitted that the RPD erred by reaching an adverse credibility finding based on minor inconsistencies. Moreover, it is argued that the PA reasonably explained that the discrepancy is attributed to the translator who equated the terms "XXXX" and "XXXX". [27] I am not persuaded by Counsel's submission. [28] First of all, it is well-established that the RPD is entitled to draw conclusions concerning the refugee claimant's credibility based on implausibilities, common sense and rationality.8 [29] In the present case, the RPD found it unreasonable that a professional translator would not comprehend the obvious linguistic difference between a "XXXX" and "XXXX". Quite frankly, I see no error with this finding. [30] Next, I disagree with Counsel that the identified inconsistency is minor in nature. To the contrary, the crux of the present refugee claim is based on alleged problems experienced by the PA and her family after she decided to investigate the circumstances surrounding her husband's arbitrary detention following an incident which took place on his way to the XXXX when his armoured car was intercepted by bandits who were complicit with the police. While the PA alleges that her husband was on his way to the XXXX given his role as the XXXX and XXXX XXXX of the company tasked with making XXXX XXXX, the credibility of this assertion is undermined given inconsistencies in the PA's evidence surrounding her husband's role in the company. Several trips to the USA is conduct which is incompatible with the PA's alleged fear in Haiti [31] Following her husband's alleged arbitrary detention in XXXX 2013, the PA states that she experienced ongoing problems from bandits in Haiti who acted with the complicity of the police. [32] While the PA made at least XXXX return trips to the USA from XXXX 2013 to XXXX 2017, she did not claim refugee protection. She testified that it was only in XXXX 2017 when she was informed that bandits went to the airport to inquire about her presence in the USA, that she felt intense fear and decided that she could no longer return to Haiti. [33] The RPD determined that the Appellant's failure to make a refugee claim in the USA where she travelled on at least XXXX occasions is conduct that is not compatible with her alleged fear in Haiti, which further undermines her credibility. [34] On appeal, Counsel argues that the RPD erred by failing to consider that it was only after bandits made enquiries about her at the airport in XXXX 2017 that the PA felt truly afraid of returning to Haiti. However, I find this submission strains credibility given that the PA described that she experienced very serious incidents in Haiti prior to the airport incident in XXXX 2017. Most notably, the PA described: - An armed attack involving her husband who was on his way to the XXXX in XXXX 2013 which was the result of a conspiracy by a malicious member of the police; - The illegal detention of her husband as a result of this incident in XXXX 2013; - A home invasion by armed bandits in XXXX 2014 who fired shots, stole the PA's money and threatened her to stop pursuing her investigation; - A car carrying the PA, her husband and children was sprayed with bullets on an unspecified date between XXXX and XXXX 2016 as they were travelling to XXXX; [35] In sum, it is well-established that the RPD is entitled to consider the refugee claimant's conduct in assessing the credibility of the allegations underpinning the refugee claim. While the PA alleges that her life is in danger from bandits in Haiti, she chose to make at least XXXX return trips to the USA where she failed to make a refugee claim. I find that the RPD did not err in reaching the conclusion that the PA's behaviour is incompatible with someone fearing harm in Haiti and negatively impacts her credibility. Other submissions raised on appeal have no merit [36] Counsel further submits that the RPD decision is not grounded in the evidence; the RPD erred by basing its decision on irrelevant and non-determinative factors; and the RPD decision is unintelligible and incoherent. [37] While Counsel has raised very serious issues aimed at challenging the RPD's assessment of credibility in the present case, the submissions are bald assertions without any reference to the evidence. Conclusions regarding credibility [38] Up to this point in the analysis, I have considered each issue raised by Counsel in isolation and reached the conclusion that the submissions challenging the adverse credibility finding by the RPD have no merit. [39] At this juncture, I wish to add that the Appellants have not challenged other specific adverse credibility findings made by the RPD. For example, the RPD noted a major contradiction in the evidence regarding the husband's arbitrary detention in Haiti. While the PA testified that her husband was released from prison after XXXX weeks (XXXX XXXX, 2013), which is compatible with the date that appears on the Attestation of his proof of detention,9 the PA indicated in her BOC that her husband was detained for XXXX months. [40] When challenged by the RPD to explain this inconsistency, the PA responded that she brought this error to the attention of the translator and asked her Counsel to correct the error. At the request of the PA, the RPD agreed to review the draft BOC narrative that the PA prepared and reviewed with the translator and Counsel. [41] The RPD rejected the PA's explanation for the inconsistency. While the PA alleged for the first time when she testified that she was aware of a discrepancy in her evidence regarding the precise period that her husband was detained, she also declared at the outset of the RPD hearing that the information contained in her BOC is correct, true and complete. Moreover, the RPD determined that it is incoherent that the PA would have noticed a critical error in the BOC and that neither the translator nor Counsel bothered to correct it. This is especially unlikely considering that Counsel made other amendments to the BOC prior to the RPD hearing. [42] In addition, the RPD reviewed the draft narrative prepared by the PA.10 While one reference to the XXXX-month period her husband spent in prison is circled at paragraph 5 of the draft narrative, another reference to the XXXX-month period her husband was in prison is not circled.11 The RPD found that no definite conclusion could be drawn from the fact that a word was circled in the draft narrative. [43] All things considered, the RPD found the inconsistency regarding the alleged period of time that the PA's husband was detained is not well explained and further undermined the credibility of the evidence. I note this finding is unchallenged on appeal. [44] In sum, having undertaken an independent analysis of the evidence, having listened to the audio recording of the RPD hearing and having considered the Appellants' arguments, I share the credibility concerns noted by the RPD which are well supported by the evidence. Taken together, the identified credibility concerns touch on core facts underpinning the present refugee claim and are sufficient, on a balance of probabilities, to cast doubt on the overall credibility of the Appellants' evidence that they are at risk in Haiti from bandits who are complicit with the police. 2. The claim regarding the two minor children who are citizens of the USA [45] The two minor children are citizens of the USA. The RPD dismissed their refugee claims based on the evidence that they have no fear of returning to their respective countries of nationality. There is no reason to disturb this finding which is unchallenged on appeal and well supported by the evidence. VII. REMEDY [46] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. Patricia O'Connor Me Patricia O'Connor July 23, 2019 Date PO/lp 1 The RPD designated the PA as the representative of her children. Since they are still minors, the PA remains the Designated Representative before the Refugee Appeal Division (RAD). See RAD Rules, SOR/2012-257, Rule 23(1). 2 BOC narrative, RPD record, p. 24. 3 Amended BOC, RPD record, p. 124. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras. 78, 103. 5 Ibid, paras. 58, 59 and 70. 6 Exhibit P-2, Certificate of Employment for the PA's husband, RPD record, p. 127. 7 Exhibit P-3, Notification of End of Contract for the PA, RPD record, p. 128. 8 Lawani v Canada (Citizenship and Immigration) 2018 FC 924, para 26. 9 Exhibit P-4 Attestation from the Ministère de la Justice et de la Sécurité Publique, RPD record p. 129. 10 Exhibit P-10, RPD record, p. 22. 11 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 10 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-12867; MB8-12868; MB8-12869