MB8-26129

RAD File No. / No de dossier de la SAR : MB8-26129 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 November 1, 2019 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal Me Angelica Pantiru 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] XXXX XXXX, the appellant, is a citizen of Haiti. She is alleging a fear for her life in Haiti because of armed criminals who, on XXXX XXXX XXXX 2014, attacked her at her place of business in Port-au-Prince, attempting to steal money from her and sexually assault her. They allegedly fled after hearing her spouse and neighbours shouting. The criminals allegedly killed her spouse on XXXX XXXX, 2017. [1] On October 23, 2018, the Refugee Protection Division (RPD) rejected the appellant's claim for refugee protection, concluding that she was not credible owing to numerous omissions, contradictions and inconsistencies between the evidence submitted and her testimony. The RPD also concluded that the appellant's behaviour was not consistent with her alleged fear of returning to Haiti. The RPD found that, were she to return, the appellant would not face a prospective risk because she is a woman. The RPD stated that it had taken into account Women Refugee Claimants Fearing Gender-Related Persecution.1 [2] The appellant is appealing against the RPD decision. She submits that the RPD erred in finding that she was not credible by disregarding evidence that weighed in her favour and focusing solely on evidence that weighed against her. [3] In this appeal, the Refugee Appeal Division (RAD) must determine whether the RPD erred in its assessment of the appellant's credibility and fear and with respect to the existence of a prospective risk by reason of her membership in the particular social group of Haitian women. Having conducted a full and independent analysis of the evidence submitted, I am of the view that the RPD was correct in its decision and did not err in its assessment. DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. I dismiss the appeal. ROLE OF THE REFUGEE APPEAL DIVISION [5] For questions of fact, of law and of mixed fact and law, the RAD has applied the standard of correctness, in accordance with the Federal Court of Appeal's decision in Huruglica.2 Accordingly, I will conduct my own analysis of the record, which includes listening to the recording of the hearing, to determine whether the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL Appellant's credibility [6] The appellant acknowledges that there were issues during her testimony, but argues that her story is true.3 Failure to mention the report to police (XXXX XXXX, 2014) in her Basis of Claim Form [7] In her Basis of Claim Form (BOC Form), the appellant submits that it is important to keep in mind that all, not just some, of the oral and documentary evidence must be taken into account and assessed. In my view, this is a general reminder that does not clearly identify what evidence the RPD allegedly failed to consider. Having completed my own analysis of the record, I am of the view that the RPD considered all of the evidence in arriving at its decision. [8] The appellant submits that the RPD erred in considering that the root cause of her problems is that her spouse filed a police report and identified the criminals, and that her problems stemmed from the attempted rape, the vengeance of the assailants and the murder of her spouse. [9] The recording of the hearing reveals that the appellant testified to having received telephone calls in which her assailants threatened to go after her because she apparently got in their way by reporting them to police and because they knew that they could end up losing their freedom as a result.4 She also testified that her assailants thought that she and her husband were still going to continue reporting them to police to put an end to their activities, and that they threatened her to get her to stop reporting them and because she had become their enemy in reporting them.5 [10] The appellant points out that the RPD was wrong to indicate that she embellished her story to state that her problems began because her spouse filed a complaint identifying the criminals, given that she indicates in her BOC Form that her husband had identified the criminals and that they were afraid of being reported. Without claiming to know what exactly the appellant's aim was in testifying at the hearing, I nevertheless note that she testified in the above-mentioned manner at the hearing. The fact that she indicates in her BOC Form that her husband identified the criminals and that they were afraid of being reported is not the same as stating that they were out to get her because they had been reported. [11] In the circumstances and in light of the foregoing, I agree with the RPD that, according to her testimony, her problems in Haiti and the reason for the criminals' interest in her stem from the police report filed against them for her alleged assault on XXXX XXXX, 2014. [12] On appeal, as at the hearing, the appellant submits that she did not mention in her BOC Form that her spouse filed a complaint with police the day after the assault because the police took no action and because she did not follow up on the complaint or have any documentation to support her claims. In my view, that explanation is not satisfactory. Question 2(c) of the BOC Form is clear and straightforward, asking the refugee protection claimant to indicate whether assistance was sought from the authorities, to explain in detail what steps were taken and what happened as a result, and to indicate dates, places and names wherever possible. The appellant signed her BOC Form, thereby declaring that the information provided therein is complete, true and correct and that she understands that her declaration has the same force and effect as if made under oath. In the circumstances, I do not consider this answer to be a satisfactory explanation for the noted omission. Her credibility is undermined. The RPD's conclusion is correct. Failure to mention the assailants' names in her Basis of Claim Form [13] Although she identified and named three of her assailants at the hearing, the appellant fails to mention them in her BOC Form. When confronted with this, she explained to the RPD that she did not know that she was supposed to indicate their names. She points out on appeal that the BOC Form is meant to briefly outline her claim, not to document all of her allegations,6 and that her explanation is reasonable since her spouse helped her identify the criminals. [14] I do not consider the appellant's explanation to be satisfactory. The identities of the assailants constitute basic information. If she knew their identities and the names of three of them, regardless of how she had found this out, it is reasonable to expect that she would specify them in her BOC Form, especially since it clearly asks refugee protection claimants to provide details regarding who caused the harm, mistreatment or threats, including their names. The appellant clearly signed her BOC Form, thereby declaring that the information provided therein is complete, true and correct and that her declaration has the same force and effect as if made under oath. In the circumstances, I agree with the RPD that this omission undermines her credibility. The RPD's conclusion is correct. Contradictions regarding when and where the appellant went into hiding following the alleged assault [15] The RPD noted what I consider to be contradictions between the appellant's statements in her BOC Form, her IMM 5669 form7 and her testimony at the hearing. At the hearing, she testified that, after the XXXX XXXX XXXX 2014, assault, she spent two or three days at home, followed by two or three days in Kenscoff and that, in XXXX 2015, her spouse fled to St-Louis-du-Sud, whereas she went to the Dominican Republic. [16] However, according to her BOC Form, she left for the Dominican Republic in late XXXX 2015. When confronted with this, she explained that she went from place to place in Carrefour, a Port-au-Prince neighbourhood. In response to question 12 of her IMM 5669 form, which asks for all the residential addresses where she had lived during the past 10 years, she indicates that she lived in her home until XXXX XXXX, 2017. When confronted with this, she explained that she and her family had left their home after XXXX 2014, but that she could not recall the date and that she still paid the mortgage on the home, which she still owned.8 She also stated that she and her husband had taken possession of another property in order to store belongings there. [17] To begin with, her responses do not explain why she contradicted herself, establishing a significant gap between the timeline of events that she provided at the hearing, in her BOC Form and in her IMM 5669 form. Next, these are events that she apparently personally lived through, and it is therefore expected that she would provide the same account of when they occurred. The appellant signed her BOC Form as well as her IMM 5669 form, thereby declaring that the information contained therein is complete, true and correct. I do not consider that the answers that the appellant provided to explain the contradictions raised to be satisfactory. In the circumstances, this is not simply an error in her IMM 5669 form, especially since, by the appellant's own admission, she was out of the country from XXXX to XXXX 2015 and from XXXX to XXXX 2016, so she could not have been living at the same address.9 This undermines the appellant's credibility. [18] In her appeal memorandum, the appellant submits that she contradicted herself because she did not remember the addresses, given that she was always on the move. She acknowledges that her IMM 5669 form contains errors and she points out that care must be taken regarding the port-of-entry notes. These are new explanations that the appellant had ample opportunity to provide to the RPD, which gave her every opportunity to explain. Even if I considered these new explanations, they would not be satisfactory for the same above-mentioned reasons. The RPD's conclusion is correct. [19] What is more, the appellant contradicted herself in indicating in her IMM 5669 form that she had worked at her business until XXXX 2017, whereas she testified at the hearing that she had been in hiding since the assault on XXXX XXXX XXXX 2014, first in Kenscoff in XXXX 2014 and then in the Dominican Republic in XXXX or XXXX 2015 . When asked to explain, she testified that she did not recall writing XXXX 2017 in her IMM 5669 form.10 She explained to the RPD that she had abandoned her business in XXXX 2015, only to later state that this had been in XXXX 2015.11 Although this contradiction is not challenged on appeal, in my view, these answers do not at all explain the contradiction noted. I consider this to be a major contradiction given that there is a significant difference between being in hiding, or even outside the country, and continuing to work in Haiti at the same business until XXXX 2017, just before she left Haiti in XXXX 2017. The appellant's credibility with respect to when she abandoned her business is undermined. Appellant's credibility Spouse's murder [20] Regarding the death of her spouse, the RPD noted a number of contradictions between the appellant's testimony and the evidence submitted. The RPD considered that, although the appellant testified that, based on what her sister had told her, her spouse had been killed while he was leaving his home, in the Carrefour neighbourhood where he was renting a house with the appellant, Exhibit P-1, the record from the peace court12 issued in relation to the death of her spouse, indicates that he was killed while returning home. The RPD pointed out this inconsistency to the appellant and drew a negative inference from it. [21] In this appeal, the appellant does not dispute the contradiction, but submits that the RPD cannot draw a negative inference from it because the information came from her sister and that this is a secondary or collateral issue. I do not agree with this. On the contrary, I am of the view that this inconsistency concerns a central element of her alleged fear of returning, namely, the murder of her spouse by the criminals who allegedly assaulted her on XXXX XXXX, 2014, and reportedly wanted to take revenge because her husband had identified them and reported them to police, and that she allegedly still fears these criminals. In addition, regardless of whether she received the information from her sister or someone else, it is reasonable to expect the appellant's testimony to be consistent with the evidence that she, herself, submitted. In my view, this inconsistency further undermines her credibility. The RPD's conclusion is correct. [22] The appellant submits that the RPD erred by not giving any probative value to Exhibit P-1 because of the irregularities it contains. She notes that the fact that it states [translation] "Today, Thursday, XXXX day of the month of XXXX, in the 210th Year of Independence at nine o'clock in the morning" is attributable to the fact that the year 2014 is the 210th year since the country gained its independence in 1804 and that there is therefore no error. In my view, there is indeed an error because, like the RPD, I note that the number indicated is not 210, but actually 21. The number 21 is even followed by a line indicating that there is no other number after the 1. The recording of the hearing reveals that counsel for the appellant argued that she saw 210, but that the RPD saw the number 21. [23] The RPD found it strange that the date of XXXX XXXX in the year 21 appears on the first page of the document, whereas a stamp dated XXXX XXXX XXXX 2018, and another dated XXXX XXXX, 2018, appear on the second page. According to the appellant, the date of XXXX XXXX, 2018, is the date on which the true copy of the original was authenticated, not the date on which the justice of the peace signed the document, and the seal of signature authentication is dated XXXX XXXX, 2018. [24] Be that as it may, in my opinion, the RPD noticed scratches and missing paper, as though the document had been scraped to remove something. On the second page of the document, next to a stamp in the upper left, correction fluid was applied and appears to cover something. I note that, during the hearing, counsel for the appellant acknowledged that she had noticed the same irregularities.13 In the circumstances, owing to the irregularities and the fact that this exhibit contains an inconsistency regarding the place where the appellant's spouse was allegedly killed, I consider that the RPD was correct in concluding that no weight should be given to this exhibit. [25] The appellant suggests that the RPD seems to conclude that the appellant forged six signatures. Despite carefully reading the RPD's decision, I cannot find such a statement or conclusion anywhere. Not giving the exhibit any probative value in no way indicates a conclusion that the appellant forged six signatures. [26] With respect to Exhibit P-2, a death certificate,14 the appellant submits that the RPD gave it no probative value because it was issued on XXXX XXXX, 2018, because it does not indicate the address of the deceased's father and mother, and because the time of death indicated-1:00 a.m. on XXXX XXXX, 2017-is different from the time of death indicated in Exhibit P-1, namely, 9:00 p.m. She submits that exhibits P-1 and P-2 are not contradictory with respect to the time of death because the time indicated in Exhibit P-2 is the time that the appellant's mother reportedly learned of the death of her daughter's spouse. This is a new explanation given that, at the hearing, the appellant actually stated that the death certificate had been issued based on the declaration of the morgue owner. The appellant had ample opportunity to share this with the RPD, which gave her every opportunity to explain. In my view, it is reasonable to expect that the time of death be the same in two official documents. It is also reasonable to expect, in my opinion, that the missing information would be there since space is provided to that effect. In addition, I note that the text [translation] "In witness.whereof, given a certificate d," in which the letter "d" seems to appear randomly, is followed by a space where information is to be entered. [27] The appellant points out that the RPD should not use exhibits considered unreliable (P-1) as a premise to determine whether the appellant is credible in regard to other parts of her testimony. [28] In my opinion, the RPD relied on a number of factors to conclude that the death certificate lacked probative value: the irregularities mentioned above, including the random appearance of the letter "E" in the header; missing information in the document; the inconsistency regarding her spouse's alleged time of death, for which a satisfactory explanation was not provided; as well as the credibility issues noted in the appellant's account. Accordingly, I am of the view that the RPD did not err and that it was correct in giving no weight to Exhibit P-2. [29] In assessing the appellant's credibility, the RPD also considered the fact that she failed to mention in her BOC Form that her spouse continued to receive threats after leaving Port-au-Prince in XXXX 2015 and the fact that the appellant did not provide a satisfactory explanation for the omission, simply stating that there was no specific reason for the omission.15 In my opinion, this omission undermines the appellant's credibility, and the RPD did not err in concluding as much. The appellant does not challenge the RPD's analysis or conclusion in that regard. Appellant's credibility - behaviour inconsistent with the alleged fear [30] It has been established in the case law that a delay in leaving the country where one fears persecution, where one truly fears for one's life, just as voluntary returning there, are factors to be considered in assessing a refugee protection claim. Such behaviour may be indicative of a lack of subjective fear16 and is inconsistent with that of someone who truly fears for their life. In short, failure to provide a reasonable explanation for the delay in leaving the country17 can undermine the credibility of the refugee protection claimant.18 [31] From XXXX 2015 to XXXX 2015, the appellant stayed in the Dominican Republic, but she returned to her home in Haiti because she thought that her problems were behind her and because she wanted to celebrate her birthday with her family.19 She submits on appeal that she returned to Haiti in XXXX 2015 because she thought the criminals had forgotten about her. I do not consider this explanation to be satisfactory given that, according to the appellant's testimony, while she was in the Dominican Republic, her husband received threatening telephone calls from the criminals who had allegedly assaulted her on XXXX XXXX, 2014,20 and the reason why she, herself, did not receive any was that her cell phone was disconnected. [32] In the circumstances and in light of the alleged risk to her life, I am of the view that the appellant's return to Haiti, after spending six months in the Dominican Republic, undermines her credibility as well as the credibility of her allegations regarding the assault and threats at the hands of criminals. In my opinion, this demonstrates that she did not fear for her life for any reason. [33] Furthermore, from XXXX to XXXX 2016, the appellant was in the United States but returned to Haiti in XXXX 2016. On appeal, she submits the same explanation as the one given to the RPD, namely, that she returned there to apply for an American visa for her daughter. I do not consider this explanation to be satisfactory for the following reasons. In her BOC Form, she provides a contradictory account, stating instead that she returned in the hope that the criminals had forgotten about her. Since the appellant had been receiving threats for nearly two years and given the alleged risk to her life at the hands of armed criminals, I am of the view that this second return to Haiti further undermines the appellant's credibility with respect to her fear of returning. I find that this shows yet again that she did not fear for her life in Haiti for any reason whatsoever. [34] This is especially true given that the appellant waited six months, namely, until XXXX 2017, after obtaining her American visa to leave Haiti for the United States. However, she testified that, after returning to Haiti, the threats intensified. [35] The appellant lived in the United States from XXXX 2017 to XXXX 2017 without applying for asylum there. She submits that she did not do so owing to the anti-immigration policies of President Trump. It is true that she was there for only two months and that this is not determinative. Nevertheless, the fact that she stayed in that country, where she was safe far from her alleged assailants and where an asylum system is in place, without seeking international protection from the authorities of that country before arriving in Canada, coupled with the credibility issues noted in her account, further demonstrates, in my view, that the appellant did not fear for her life in Haiti and further undermines her credibility. [36] In light of the foregoing, I am of the view that the appellant's behaviour was inconsistent with that expected of a person alleging that their life is at risk in their country of nationality. This further undermines her credibility, in my opinion. Coupled with the credibility issues previously noted in her account, this behaviour demonstrates a lack of subjective fear in Haiti and that she was not afraid of being subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment there. [37] Given all of the evidence on the record and the credibility issues noted, including her behaviour, I consider that the RPD was correct in concluding that the appellant is not a credible witness. I am of the view that she failed to demonstrate, on a balance of probabilities, that she was assaulted and threatened as alleged and that her spouse was murdered in the circumstances alleged. I find that the appellant and her refugee protection claim lack credibility overall. Refugee Protection Division's duty to consider the documentary evidence [38] The appellant submits that the RPD did not consider Tab 7.3 of the National Documentation Package (NDP) on Haiti dated April 30, 2018, regarding revenge committed by gangs or by other organized crime structures. I am of the view that the RPD did not err since it considered the appellant not to be credible with respect to the alleged events. She did not demonstrate, on a balance of probabilities, that she experienced the alleged problems in Haiti; in other words, she failed to establish a connection between the documentary evidence cited and her personal situation. Profile as a single woman [39] The appellant submits that the RPD misinterpreted Tab 5.12 of the NDP on Haiti dated April 30, 2018, regarding violence against women, which mentions the persistence of gender stereotypes in Haiti, as well as Tab 5.15, which highlights that even women who are not in precarious situations may be victims of violence. The appellant points out that she is a widow and lives alone with her 18-year-old daughter. [40] I carefully read the appellant's memorandum, including the references to the documentary evidence, with which I am familiar. The facts that the appellant is a woman and that violence against women exists in Haiti are not sufficient to establish a serious possibility of the appellant being persecuted in her country, as held by the Federal Court in Dezameau.21 [41] In Josile,22 the Honourable Justice Martineau agrees with Justice Pinard's findings in Dezameau. He also points out that the particular circumstances and situation of the refugee protection claimant in the case of return to Haiti must be considered and analyzed, for example, the absence of male protection within her family, her geographic location and her personal situation.23 That is precisely what the RPD did, taking into consideration the appellant's personal situation including her family environment, her level of education and her work experience. I note that the evidence on the record shows that the appellant is a woman with a high school education and a businesswoman running her own business, who has travelled abroad a number of times on her own and who has family in Haiti, namely, brothers and sisters, with whom she is in contact. I see no error in the RPD's analysis. [42] In my opinion, owing to the credibility issues noted in her testimony, including her behaviour, such as returning to Haiti twice after being abroad for months at a time, I consider the RPD's decision to be correct and that the appellant failed to demonstrate, on a balance of probabilities, that she experienced the problems alleged in Haiti or that there is a serious possibility that she would be subjected to persecution there because she is a woman. CONCLUSION [1] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the RPD's determination that the appellant, XXXX XXXXXXXX, is neither a Convention refugee nor a person in need of protection. (Signed) Love Saint-Fleur Me Love Saint-Fleur November 1, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) Chairperson. Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Guideline issued by the Chairperson pursuant to subsection 65(3) of the Immigration Act. Effective: November 13, 1996. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Appellant's record. Appellant's memorandum, paragraph 24. 4 Minute 01:50:34 and following of the recording of the hearing before the RPD. 5 Minute 01:54:41 and following of the recording of the hearing before the RPD. 6 Basseghi, Kourosh v. M.E.I. (F.C.T.D., No. IMM-2227-94), Teitelbaum, December 6, 1994. 7 RPD record. Document 1 - Information package provided by the Canada Border Services Agency/Immigration, Refugees and Citizenship Canada, having referred the matter: No. IMM 5669, question 12. 8 Minute 02:25:45 and following of the recording of the hearing before the RPD. 9 Appellant's record. Memorandum of appeal, paragraph 7. 10 Minute 02:01:52 and following of the recording of the hearing before the RPD. 11 Minute 01:59:45 and following of the recording of the hearing before the RPD. 12 RPD record. Document 4 - P-1: Excerpt from the minutes of the registry of the peace court of the north section of Port-au-Prince. 13 Minute 02:38:40 and following of the recording of the hearing before the RPD. 14 RPD record. Document 4 - P-2: Death certificate. 15 Minute 01:49:52 and following of the recording of the hearing before the RPD. 16 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, paragraphs 29 and 30. 17 Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.). 18 El-Khatib v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-15, LeBlanc, April 27, 2016; 2016 FC 471, paragraph 12. (Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.).) (Caballero, Fausto Ramon Reyes v. M.E.I. (F.C.A., No. A-266-91)). 19 Minute 01:57:32 and following and minute 01:31:04 and following of the recording of the hearing before the RPD. 20 Minute 01:48:56 and following of the recording of the hearing before the RPD. 21 Dezameau v. Canada (Citizenship and Immigration), 2010 FC 559, para. 29. 22 Josile v. Canada (F.C. No. IMM-3623-10), Martineau, January 17, 2011, 2011 FC 39. 23 Josile v. Canada (Citizenship and Immigration), 2011 FC 39, para. 39. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-26129 RAD.25.02 (April 4, 2019) Disponible en français 6 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