MB9-07006

RAD File No. / N° de dossier de la SAR : MB9-07006 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, QC Appel instruit / entendu à Date of decision July 28, 2020 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal N/A Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX a citizen of Haiti, is appealing against the determination of the Refugee Protection Division (RPD) dated March 7, 2019, rejecting his refugee protection claim for credibility reasons. [2] He states that the RPD erred: a. by making a decision based on erroneous findings of fact and/or law, made in a perverse or capricious manner and without regard for the material before it, and inconsistent with the objective and the spirit of the Immigration and Refugee Protection Act1 (IRPA). b. in law in making a decision, whether or not the error appears on the face of the record.2 c. by committing a reviewable error on appeal in its assessment of the relevant and determinative facts, including: - the existence of prospective risks for the claimant if he returned to Haiti; and - the claimant's credibility.3 [3] The appellant is asking the Refugee Appeal Division (RAD) to allow his appeal, set aside the RPD's determination and substitute it for a determination that favours his claim, or refer the matter before a differently constituted RPD panel for a hearing de novo.4 [4] As was the case before the RPD, the determinative issue before the RAD is credibility. DETERMINATION [5] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [6] According to his Basis of Claim Form (BOC Form), the appellant was a member of the "Fanmi Lavalas" party. He left Haiti XXXX XXXX XXXX XXXX XXXX XXXX after receiving death threats. [7] He states that he applied for asylum XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [8] The appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX, when he decided to return to Haiti to see his family. He states that, during this stay, he was attacked XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [9] He stayed in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and claimed Canada's protection. Minister's intervention [10] The Minister intervened by presenting to the RPD submissions containing facts pertaining to contradictions between the appellant's statements and the information available in the documentary evidence. The Minister finds that the appellant's credibility is undermined and argues that he is using the refugee protection system solely to obtain permanent status in Canada, which undermines the integrity of the Canadian refugee protection system.5 STANDARD OF REVIEW [11] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is when the RPD enjoys a meaningful advantage in assessing credibility.6 That being said, the role of the RAD is to determine whether the RPD did indeed commit errors, as the appellant states. [12] The RAD applied the correctness standard of review in this case. ANALYSIS [13] The RPD found that the appellant was not a credible witness. His testimony, his BOC Form, the addenda to the latter, the forms completed when he arrived in Canada and the documentary evidence presented include many contradictions, omissions, implausibilities and inconsistencies that are central to his refugee protection claim.7 [14] In a memorandum that was prepared in general terms, the appellant identifies every paragraph of the RPD decision as a location where it erred. He reviews, in a narrative manner, all the RPD's conclusions relating to his contradictions and inconsistencies to add that his explanations were reasonable without providing any other form of relevant and specific explanation with regard to the RPD's errors. [15] In addition to these general grievances that lack specific arguments, that is, that the RPD erroneously concluded that he is not a member of the "Fanmi Lavalas" political party,8 that the incidents between 2004 and 2011 did not occur,9 and that his testimony pertaining to the possibility that his life would be at risk in Haiti lacks credibility,10 the appellant made three criticisms against the RPD's decision (one specific and two general): * First counsel's responsibility with regard to the multiple contradictions and inconsistencies between his testimony, his BOC Form and various addenda.11 * The lack of consistency and intelligibility in the RPD's decision12 (credibility and subjective fear of persecution). Was the appellant's first counsel responsible for the appellant's contradictions? [16] The appellant argues that he changed counsel on October 18, 2017, and that it is therefore possible that there were misunderstandings between him and his first counsel.13 [17] The RAD disagrees with this argument. [18] The appellant completed and signed his BOC Form on September 25, 2017, with the help of his first counsel, XXXX XXXX. Less than a month later, on October 18, 2017, he secured new counsel, XXXX XXXX, who supported him throughout the entire process before the RPD and who continues to support him before the RAD. [19] While the first counsel certainly helped the appellant prepare his initial BOC Form when filing his refugee protection claim, the record presented to the RPD, the amendments on July 17, 2018, similar to the amendment on January 10, 2019, following the Minister's intervention and the amendment at the hearing were all completed with the help of the new lawyer, XXXX XXXX. She also represented him at the hearing before the RPD on January 22, 2019, and continues to act as his counsel before the RAD. The appellant's memorandum is signed by XXXX XXXX on April 15, 2019. [20] Furthermore, the case law has established the principles pertaining to the representation of attorneys who have been flagged in G.D.B.v. Her Majesty the Queen:14 [26] The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted [emphasis added]. [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment [emphasis added].... [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body [emphasis added]... [21] More recently, in Rendon Segovia et al. v. The Minister of Citizenship and Immigration,15 the Federal Court repeats the criteria that must be demonstrated for a counsel's incompetence to amount to a breach of procedural fairness. Appellants must establish that each element of a tripartite test is met, namely that: a. Prior counsel's acts or omissions constituted incompetence; b. A miscarriage of justice resulted in the sense that, but for the alleged conduct, there is a reasonable probability that the result would have been different; and c. The representative was given a reasonable opportunity to respond. [22] Consequently, the RAD disagrees with the argument that the appellant's contradictions are due to misunderstandings with his first counsel, and cannot explain the numerous serious and significant credibility issues that were raised at the hearing. Are the Refugee Protection Division's findings regarding the appellant's credibility coherent and intelligible? [23] The RPD found that the appellant was not credible for a number of reasons, including: * Contradictions between his testimony and the various accounts presented and corrected, either after counsel changed, after the Minister's intervention to remove from his written account the contradictions raised by the Minister, or, finally, on the day of the hearing before the RPD.16 * Contradiction between his testimony about his role in the "Fanmi Lavalas" party and his girlfriend's statements to the justice of the peace in the complaint dated August 16, 2004, and also about the criminals who attacked the appellant in 2004 and 2011.17 * The implausibility that the appellant rejoined the "Fanmi Lavalas" party in 1994 (in his BOC Form) and in 1991 (in Schedule A, which was completed and signed when he arrived in Canada), while this party, according to the National Documentation Package (NDP) was registered only on October 30, 1996, and was not recognized until February 14, 1997.18 * The contradiction between his oral testimony that he was still a member of the "Fanmi Lavalas" party, even though, in his BOC Form, similar to Schedule A, he states that he ended his membership in this party in December 2004.19 [24] The appellant cites Maldonado and argues that, "as a result, a refugee protection claimant is not required to corroborate testimony given under oath, which is, moreover, presumed credible."20 [25] The RAD disagrees. [26] Testimony before the RPD is presumed credible. However, this presumption can be rebutted if there are inconsistencies in the written and oral testimony, or if the refugee protection claimant's testimony lacks consistency or detail. The Federal Court states that: "When the witness has difficulty giving adequate and direct answers, the panel may make a negative credibility finding."21 [27] The RPD found the appellant not credible after confronting him about facts that are central to his refugee protection claim. [28] At the hearing, the appellant did not have satisfactory responses to a number of the RPD's concerns pertaining to contradictions, omissions and inconsistencies in the written account relating to major incidents of persecution. His responses were evasive and inconsistent, and his explanations were unsatisfactory. [29] The appellant was responsible for convincing the RPD that there is a serious possibility of persecution or, on a balance of probabilities, that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment if he returned to Haiti. [30] The RPD gave him the opportunity to explain the allegations. He was unable to provide satisfactory responses and, consequently, failed to discharge his burden of proving the truthfulness of his allegations in a probative manner. [31] In light of such hesitant and inconsistent testimony throughout the hearing, the RAD argues that the RPD was completely justified in having serious doubts as to the truthfulness of the appellant's story and allegations. [32] The RAD is of the opinion that the RPD's reasons are transparent, clear and easy to understand. They are detailed, exhaustive and describe in detail the contradictions, inconsistencies and omissions noted in the appellant's testimony at the hearing. [33] The RPD did not err in its assessment of the appellant's credibility. Subjective fear of persecution [34] The appellant cites the case law to support that the RPD failed to conduct an analysis based on all of the evidence as his fear of persecution is clearly founded.22 [35] The appellant's memorandum does not include, in accordance with subparagraphs 3(3)(g)(i) and (ii) of the Refugee Protection Division Rules,23 full and detailed submissions regarding the RPD's errors and where the errors are located. The RAD considers that the appellant's arguments are unfounded. [36] The documents presented fail to dissipate the major concerns regarding the credibility of the appellant's allegations raised by his testimony and behaviour. The RPD did not err by attributing only limited weight to these documents compared to the oral testimonies that can be verified under oath. [37] Certainly, the case law states that the RPD should not be zealous to find instances of contradiction in the applicant's testimony or be over-vigilant in its examination of the evidence. However, it is not sufficient for refugee protection claimants to maintain that certain facts occurred and to file documents that raise serious doubts as to their authenticity in order to determine that they are Convention refugees. [38] The RPD member has an onerous task. He or she must, among other things, ensure that refugee protection is granted only to those who need it; the process for determining refugee status must not be used for other purposes. To this end, he or she must question the claimants to ensure the truthfulness of the alleged facts and, when he or she has doubts about the authenticity of the documents submitted, he or she has no choice but to communicate this to the claimants in order to give them the opportunity to respond. That was done in this case. [39] The RPD noted a number of contradictions and inconsistencies in the documentation presented into evidence, particularly in the excerpt of the minutes of the office of the tribunal of Desdunes. It questioned the appellant about these inconsistencies and contradictions. His response [translation] "I don't know, it's written like that," did not satisfy the RPD. [40] The RAD considers that the RPD was correct in finding that the appellant's explanations are not credible or reasonable. He had all the time needed to note all the contradictions and correct them, and correct his written account accordingly. [41] In this case, all of these factors have undermined the appellant's credibility. Even if one of the factors, when considered on its own, might seem less important, altogether, they lead to serious doubts about the alleged facts. [42] The RPD correctly found that the appellant lacks credibility and a subjective fear. [43] In short, after analyzing the record as a whole and after considering the appellant's arguments, the RAD is of the opinion that the RPD did not err in its assessment of the appellant's refugee protection claim and that its decision is correct. CONCLUSION [44] The RAD makes the same determination, that is, that the appellant failed to establish a serious possibility of persecution or, on a balance of probabilities, that he would be personally subjected to a danger of torture, to a risk to his life, or to a risk of cruel and unusual treatment or punishment if he returned to his country. This appeal is dismissed. (signed) Mokhtar Lamani Mokhtar Lamani July 28, 2020 Date IRB translation Original language: French 1 P-2, Appellant's memorandum, issues, point (i), electronic page16. 2 Ibid., point (ii), electronic page 16. 3 Ibid., point (iii), electronic page 16. 4 Ibid., Conclusions, electronic page 20. 5 SPR-1, Refugee Protection Division (RPD) record, Minister's notice of intervention, electronic pages 121 to 124. 6 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 7 SPR-1, RPD reasons, para. 8. 8 P-2, Appellant's memorandum, para. 26, p. 18. 9 Ibid., para. 27, p. 18. 10 Ibid., supra, para. 28, p. 18. 11 Ibid., para. 4, p. 17. 12 Ibid., para. 29, p. 18. 13 Ibid., para. 5, p. 17. 14 G.D.B. v. Her Majesty the Queen, [2000] 1 S.C.R. 520, paras. 26 to 29. 15 Rendon Segovia et al. v. The Minister of Citizenship and Immigration, 2020, FC 99, para. 22. 16 SPR-1, RPD reasons, paras. 9 to 11, electronic pages 8 to 9. 17 Ibid., paras. 13 to 15, pp. 9 to 10. 18 Ibid., para. 16, p. 10. 19 Ibid., para. 17, p. 10. 20 P-2, Appellant's memorandum, para. 31, p. 19. 21 Gjergo v. Canada (MCI), 2004 FC 303. 22 P-2, Appellant's memorandum, paras. 32 to 38, p. 19. 23 Refugee Appeal Division Rules, SOR/2012-257, Current to May 22, 2019, Last amended on December 15, 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB9-07006 RAD.25.02 (January 2020) Disponible en français 10 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