MB8-14849

RAD File No. / No de dossier de la SAR : MB8-14849 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 June 21, 2019 Date de la décision Panel Me Jolyane Lefebvre Tribunal Counsel for the person who is the subject of the appeal Claude Whalen 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] The appellant, XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The appellant submits that the RPD erred by finding that he was not credible and by failing to analyzing all the evidence. [2] Following a complete and independent analysis of the evidence, including the recording of the hearing, I find that the RPD rendered the correct decision. [3] The Refugee Appeal Division (RAD) confirms the RPD's determination. This appeal is dismissed. BACKGROUND [4] In 2012, the appellant allegedly left Haiti for Brazil due to the country's economic difficulties. [5] In May 2014, the appellant's father was allegedly killed by a cousin named XXXX because he had allegedly refused to sell him his property. [6] In December 2014, the appellant allegedly returned to Haiti to build a house on the property in question. He alleges that XXXX threatened to kill him if he did not leave the premises. [7] He alleges that, the next day, he was beaten by XXXX and two members of a criminal gang while he was digging the foundation of the house. [8] Fearing for his life, the appellant left Haiti for Brazil on XXXX XXXX, 2015. [9] He arrived in the United States on XXXX XXXX, 2016, and stayed there until his arrival in Canada on XXXX XXXX XXXX 2017. SCOPE OF THE APPEAL [10] The role of the RAD in an appeal against an RPD decision is defined by the Federal Court of Appeal in Huruglica. That said, in order to examine the RPD decision, I must determine independently whether the RPD's analysis is correct with respect to each of the errors of fact, law, or mixed fact and law, raised. MERITS OF THE APPEAL RPD findings [11] The RPD found that the determinative issue was the appellant's credibility. [12] The RPD raised the following omissions and contradictions: - The appellant testified that he saw XXXX for the last time on January 6, 2015, when he went to the property accompanied by the two criminals. However, the Basis of Claim Form (BOC Form) states that he saw XXXX again twice after the incident. - The appellant testified that the conflict was related to the fact that XXXX wanted to take and steal his father's land. However, his BOC Form states that his father refused to sell it to him. - A number of elements were omitted from the complaint to the police, namely, XXXX name, the fact that both criminals accompanying XXXX were members of a criminal gang, and the fact that he was beaten by them. In addition, the complaint is dated January 6, 2015, whereas the appellant testified that he went to the police authorities the next day, on January 7, 2015. - The appellant states in his BOC Form that the incident occurred at eight o'clock in the morning, whereas the complaint to the police states that it was the afternoon. [13] The RPD raised an inconsistency to the effect that the appellant testified that his mother lived on the land in question and that she was neither bothered nor assaulted by XXXX. [14] The RPD also found that the appellant showed behaviour that is inconsistent with that of a person who fears for their life, as he left the United States before receiving a response to his application for asylum. Appellant's arguments [15] The appellant submits that the RPD's decision is erroneous because he provided a credible testimony. He submits that he cannot explain the behaviour of a third party, XXXX, and that the RPD failed to analyze this aspect of the evidence. ANALYSIS [16] Having analyzed all the evidence, including the recording of the hearing, I find that the appellant's testimony undermines his credibility. Did the RPD err in its assessment of the appellant's credibility? - The date on which the appellant saw XXXX for the last time [17] The appellant testified that he saw XXXX for the last time on January 6, 2015, whereas his BOC Form states that he saw XXXX again twice after the incident. When asked about this contradiction, the appellant first stated that he was confused and subsequently stated that the thought that the panel was referring to a face-to-face encounter. [18] The RPD found that this explanation did not clarify the contradiction and that this undermined the appellant's credibility. [19] In his memorandum, the appellant admits that he testified having seen him for the last time on January 6, 2015, but submits that he did not understand the meaning of the member's question. [20] In my opinion, the RPD did not err by finding that this contradiction undermined the appellant's credibility. The appellant's BOC Form clearly states that he saw XXXX after the incident of January 6, 2015, even specifying that he was attacked by XXXX and two individuals while returning from a party. The appellant describes this event in detail, going so far as to reporting the time and the words of the criminals.1 His BOC Form also states that it was after this attack that he definitively decided to leave Haiti in order to return to Brazil. [21] In my view, the appellant's failure to report this event at his hearing undermines his credibility, particularly since he alleges that it was after this event that he decided to return to Brazil. [22] I cannot accept the appellant's argument that he did not understand the question. Based on my listening of the recording of the hearing, I can confirm that the RPD member asked the appellant the question two times and that the question was clear and precise2 and left no room for ambiguity. - The source of the land conflict [23] The appellant testified at the hearing that XXXX wanted to steal his father's land. However, the BOC Form states that XXXX wanted to buy the property but that his father did not want this. Confronted with this discrepancy, the appellant answered that XXXX did not want to pay his father the true value of the land and that this amounted to wanting to steal the land. [24] The RPD concluded that there is a notable difference between wanting to purchase land and committing theft. The RPD added that, since this is the [translation] "basis of the present refugee protection claim,"3 it could expect the appellant to provide a single version. Moreover, it added that it could expect the sale price of the land to be provided in his BOC Form, which is not the case here. It found that the appellant's credibility was undermined on these points. [25] The appellant submits that this is not a contradiction, but rather a way of speaking. He states that [translation] "XXXX wanted to buy the land for a lesser value, which, in his view, amounts to theft."4 [26] I am of the opinion that the RPD did not err in its analysis by concluding that there is a difference between the appellant's two versions. In this regard, I agree with the RPD's conclusion that it could have expected to receive a single version. Considering that the appellant submits that this is not a contradiction but a way of speaking, I am of the opinion that the panel could have expected the story about the land to be clear and to be explained in the same manner, both in the documents supporting the claim for refugee protection and in his testimony. [27] In addition, the recording of the hearing reveals that, when the RPD member asked the appellant why he failed to indicate in his BOC Form that XXXX did not want to pay his father the true value of the land, he answered that, when [translation] "you tell a story, there may be some omissions."5 In my view, this information should have been in the appellant's BOC Form, considering that it is at the heart of the issue. In my view, this omission undermines the appellant's credibility. - The complaint to the police [28] The RPD raised numerous credibility issues with the complaint to the police. It noted that the appellant failed to specify XXXX name, that the two criminals were members of a criminal gang and that he was beaten by them. The RPD also noted that the complaint to the police states that the individuals were armed, whereas the appellant did not provide this information during his testimony. [29] Confronted with these omissions, the appellant indicated that he had given the judge XXXX name, but that the judge failed to indicate it. As for the two criminals, he stated that he failed to mention that they were members of a criminal gang because he did not want the rest of the gang to bother him. He added that it was the judge who indicated that the individuals were armed, as he wrote the report [translation] "based on the people's reputation."6 The RPD found that all of his answers undermined his credibility. [30] The appellant further testified that he went to the police authorities on January 7, 2015, whereas the complaint is dated January 6, 2015. When asked about this contradiction, the appellant answered that January 6 is written because that is the day the event occurred. The RPD found that this explanation did not justify the contradiction raised. [31] In his memorandum, the appellant submits that he is not the one who wrote the complaint and [translation] "in this context, the information may have been compiled incorrectly."7 He does not address the other contradictions raised by the RPD. [32] I am of the opinion that the RPD rendered the correct decision by finding that the appellant's credibility is undermined. As indicated by the RPD, the appellant's complaint is written in the first person and states that the appellant declared the following: [translation] "I saw a group of well-armed criminals show up, asking me not to touch the property if I wanted to stay alive."8 I cannot accept the appellant's argument that the judge failed to mention XXXX name in his complaint, given that the complaint reproduces the appellant's declaration. In addition, it appears that the appellant himself signed the complaint. In my view, the failure to include XXXX name undermines the appellant's credibility. [33] As for the other points raised by the RPD, I agree with its analysis. The failure to mention that the two criminals are members of a criminal gang and that he was beaten by them undermines the appellant's credibility, especially since the explanations provided at the hearing do not explain these omissions. [34] Moreover, I am of the opinion that the RPD did not err when it concluded that it found the claimant's explanation that it was the judge who wrote that the individuals were armed to be unreasonable. Considering that this is the appellant's declaration as reproduced in the complaint to the police, I agree with the RPD that the panel could expect the judge to report what was said to him. [35] As for the date of the complaint, I am of the opinion that the explanations provided by the appellant undermine his credibility. The complaint, dated January 6, 2015, states [translation] "this afternoon, I was working on a property."9 Therefore, I cannot accept the appellant's argument that he went to the police authorities on January 7, 2015. - The time of the incident [36] The appellant states in his BOC Form that the incident occurred at eight o'clock in the morning, whereas the police report10 indicates that it was in the afternoon. Confronted with this contradiction and the fact that it is his declaration in the police report, the appellant specified that the incident occurred in the morning, but that the judge wrote this because he reported to him in the afternoon. [37] The RPD found that the response provided by the appellant did not explain the contradiction raised and that this undermined his credibility. [38] The appellant did not provide any arguments in his memorandum. [39] After analyzing all the evidence, I am of the opinion that the RPD did not err by finding that this contradiction undermined the appellant's credibility. As mentioned in the RPD's decision, the declaration in the police report is clear: the appellant stated that the event occurred in the afternoon, which contradicts the information in the BOC Form. This undermines the appellant's credibility. - Inconsistency regarding the fact that the appellant's mother still lives on the property [40] At the hearing, the appellant indicated that his mother still lives on the property and that XXXX did not take possession of it. He also added that she was neither threatened nor assaulted by XXXX. When asked about this situation, the appellant responded that XXXX did not take the property because his family has the land titles. [41] The RPD concluded that it did not find this credible and that it was inconsistent that XXXX did not take possession of the property after everything the appellant has alleged. [42] In his memorandum, the appellant submits that the RPD's finding is unreasonable [translation] "as it is based on the behaviour of a third party who cannot explain his actions."11 The appellant adds that, contrary to himself, his mother did not undertake the construction of a house on the property and that this could explain XXXX behaviour. [43] Having analyzed the record, I am of the opinion that the RPD did not err in its analysis. [44] With all due respect to the appellant, I cannot accept his argument that the RPD's finding is unreasonable because it is based on the behaviour of a third party. He alleges fearing this third party because the third party did not want him to build a house on the property. The evidence shows that not only did XXXX not undertake any steps to take possession of the property since the event of January 2015, but he also never threatened the appellant's mother, who lives there. [45] As for the appellant's argument that, contrary to himself, his mother did not undertake the construction of a house, this does not explain why XXXX would have it in for the appellant. The appellant never completed the construction of the house on the property. He claimed that he returned to Brazil after starting on the foundation of the house. [46] In my opinion, he RPD did not err when it found the appellant's contention that XXXX wanted to kill him over a property that belongs to his mother not credible. - Behaviour inconsistent with the appellant's fear [47] At the hearing, the appellant stated that he applied for asylum in the United States, but that he came to Canada before receiving a response to his application. When asked about his behaviour, the appellant answered that he left the United States because [translation] "the government claimed that it would send people back home."12 He subsequently specified that he did not consult the American authorities or a lawyer to find out whether he was subject to deportation.13 [48] The RPD found that the appellant's explanations were not reasonable and that his behaviour was inconsistent with the alleged risk to his life in Haiti. [49] The appellant did not provide any arguments in his memorandum. [50] The RPD did not err by finding that the appellant's behaviour was inconsistent with that of a person who fears for their life. Considering that he feared returning to Haiti, I am of the opinion that the panel could expect that the appellant would wait for a response to his application for asylum or at least ask the American authorities about the options available to him. Rather, as indicated by the RPD, the appellant chose to cross the Canadian border irregularly, making himself likely to be arrested, which, in my view, represents behaviour that is inconsistent with that of a person who fears for their life. CONCLUSION [51] For these reasons, the RAD confirms the RPD's determination and determines that the appellant, XXXX XXXX, is neither a "Convention refugee" within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA) nor a "person in need of protection" under section 97 of the IRPA. [52] The appeal is dismissed. (signed) Jolyane Lefebvre Me Jolyane Lefebvre June 21, 2019 Date IRB translation Original language: French 1 Appellant's Basis of Claim Form, Refugee Protection Division (RPD) document, page 25. 2 Recording of the hearing, 1:19:43. 3 RPD decision, paragraph 22. 4 Appellant's memorandum, paragraph 17. 5 Recording of the hearing, 1:10:57. 6 Recording of the hearing, 1:33:57. 7 Appellant's memorandum, paragraph 21. 8 Exhibit D-1, RPD document, page 63. 9 Exhibit D-1, RPD document, page 63. 10 Exhibit D-1. 11 Appellant's memorandum, paragraph 19. 12 Recording of the hearing, 59:14. 13 Recording of the hearing, 1:01:24. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-14849 RAD.25.02 (April 4, 2019) Disponible en français 8 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