MB8-22416

RAD File No. / No de dossier de la SAR : MB8-22416 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 October 30, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person who is the subject of the appeal Me Myriam Harbec 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 is a citizen of Haiti who left his country because of alleged death threats for his XXXX XXXX into the links between the death of an anti-corruption magistrate and associates of the President. He allegedly went to Brazil in 2013 and stayed there until he left for the United States in 2016 before coming to Canada in June 2017. [2] The Refugee Protection Division (RPD) determined that Mr. XXXX was neither a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees (Convention) nor a person in need of protection, on grounds of credibility. [3] He is appealing against the RPD's decision of September 19, 2018, alleging that it erred in finding that his testimony was not credible, and is also submitting photographs as new evidence. DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD that XXXX XXXX is neither a Convention refugee nor a person in need of protection. ROLE OF THE REFUGEE APPEAL DIVISION [5] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record.1 The exception to this rule is that where the RPD enjoys a meaningful advantage; the RPD may then grant deference.2 [6] I will apply the correctness standard of review by conducting an independent analysis of the record, which includes reviewing all the evidence and listening to the recording. NEW EVIDENCE [7] Mr. XXXX submitted new evidence on appeal, namely, five photographs taken in 2012 by a colleague while they worked together at XXXX XXXX. [8] First, pursuant to subsection 110(4) of the IRPA, it is necessary to determine whether the evidence: a) arose after the rejection of the claim for refugee protection, b) was not reasonably available, or c) that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [9] In support of the inclusion of this new evidence, Mr. XXXX stated that it had been found by chance after the panel's decision had been received, in an archived section of his Facebook account. It was allegedly sent in 2014 unbeknownst to him, because he had never been aware of it. [10] As they were taken in 2014, it is clear that this evidence existed before the claim for refugee protection was rejected. As they had been in Mr. XXXX Facebook archives since then, they may be considered to have been reasonably available. Additionally, as they further substantiate the proof of the work, it is reasonable to expect that they would have been presented at the hearing. Therefore, I cannot accept them. ANALYSIS [11] The determinative issue is credibility. [12] The RPD relied on the lack of credibility to reject the refugee protection claim. In this regard, it noted the following: - the fact that Mr. XXXX was unable to provide the full meaning of the acronym of the school where he allegedly studied XXXX for two years; - the omission of the XXXX school in question from the section of his forms covering his academic background; and - the vague explanations about the XXXX work done, and his inability to provide examples of XXXX he had allegedly carried out. [13] The documents submitted in support were not given any weight, particularly due to Mr. XXXX shortcomings as listed above. [14] On appeal, Mr. XXXX contends that the RPD erred in finding that he lacked credibility: - by not taking into consideration his being distraught because of a personal tragedy the day before the hearing; and - by raising a non-existent contradiction about his professional training and relying on it to reach its conclusion, ignoring the credible explanations and evidence provided. Consideration of Mr. XXXX being distraught by a personal tragedy the day before the hearing [15] It is alleged that the RPD's analysis of Mr. XXXX answers did not take into account his distressed state at the hearing. Mr. XXXXclearly informed the member of his state of mind at the start of the hearing. That member was compassionate and asked if he felt well enough for the hearing to be held. The choice to proceed fell to Mr. XXXX, and it was noted that this situation would be taken into account and that there would be additional breaks if Mr. XXXXfound it necessary. [16] Given that he chose to proceed with the hearing, even though he was given the option of postponing it to a time when he would be in a better state, the RPD cannot be considered to have ignored this situation. Additionally, it gave him various options to accommodate his situation, and showed understanding and attentiveness by granting the witness all the latitude needed to enable him to answer the questions that were asked. I do not consider that the RPD's analysis could be construed as not having taken his state of mind into account. Contradiction as to his professional training and conclusions reached by relying on it [17] The death threats against Mr. XXXX allegedly stem from his XXXX XXXX into the death of a magistrate investigating associates of President Martelly. [18] The RPD reviewed Mr. XXXX academic profile and noted that the account of his academic background in Schedule A left out any mention of his XXXX certification. When asked about his studies, he was unable to give the meaning of the acronym "XXXX," the name of the institute where he had earned the diploma filed into evidence as Exhibit C-2. Although he indicated that it stood for XXXX XXXX XXXX [XXXX XXXX XXXX], it was in fact XXXX XXXX XXXX XXXX XXXX [XXXX XXXX XXXX XXXX XXXX]. [19] Be that as it may, the RPD asked about the courses he had allegedly taken to earn his diploma and examples of what he had learned in them. [20] Apart from the error about what "XXXX" stood for, which he explained was due to his state, he gave a very brief summary of his XXXX curriculum as including courses on interpersonal skills, etiquette and the XXXX process. He was unable to add anything more. He testified about the importance of having the right information but was unable to testify further about how to verify it, other than to say that one had to talk [translation] "to people in the know." [21] His explanation that the stress he had upon arriving in the country was the reason why XXXX was omitted from his academic list is not sufficient. He had ample time between then and the time of his hearing to make the necessary corrections. Additionally, he stated at the start of the hearing that the content of his forms was true and complete. Finally, the forms were filled out on XXXX XXXX, 2017, which was two weeks after his arrival. [22] Additionally, the undersigned noted when listening to the hearing that XXXXwas mispronounced and heard as XXXX. It is even more surprising that Mr. XXXXdid not use this mistake by the member as an opportunity to correct him. Instead, his explanation of the acronym was based on the misheard name, indicating "XXXX" instead of "XXXX" for the first letter in the acronym. The memorandum argues that Mr. XXXX may have made a mistake as to the institution's name but correctly indicated that it was a vocational school. [23] In my view, the explanations of the shortcomings with regard to Mr. XXXX studies are unsatisfactory. He was given a number of opportunities to rectify this omission in his Schedule A and to correct the member. Despite the many years spent studying XXXX, he was unable to relate the contents of the subject matter in greater detail. The RPD was right to make a negative finding about Mr. XXXX credibility in light of the shortcomings regarding the educational aspect of his file. Conclusions about his XXXX work based on the conclusions regarding his professional training, ignoring the credible explanations provided [24] Next, the RPD looked at the nature of Mr. XXXXwork at XXXX XXXXand his day-to-day work. It sought to find examples of XXXXhe had allegedly done. [25] He explained that he got his job as a XXXX after the 2010 earthquake, having previously worked at the XXXX XXXX XXXX XXXX. Here again, his explanations of how he got the job were limited to saying that he had called an individual who gave him the opportunity to have the job, and nothing more. [26] He was able to testify about his duties as a XXXX. He explained his role as liaising between the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, including XXXX XXXX, time management, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He gave details about the XXXX XXXX, the employees and his work schedule. [27] On appeal, he claimed that he had properly explained his work and had provided clear, detailed and spontaneous testimony. According to him, the shortcomings noted by the RPD are minor or were explained truthfully and in a way that made sense. He also alleged that he provided examples of reporting, thereby contradicting the RPD's conclusions in its decision. [28] His explanations about his work as a XXXX were clear and stood in marked contrast with those relating to the work done as a XXXX. He was unable to explain how he allegedly managed to conduct his XXXX or carry out XXXX. He testified that the XXXX work that he was called on to do was limited to going into the street during protests and allowing people to speak and then passing it all along to the XXXX so that the XXXX XXXX could decide which comments to XXXX. [29] Besides XXXX XXXX XXXX XXXX XXXX the magistrate's death, he was also unable to provide any other examples of XXXX work he had done. [30] Finally, as to the XXXX into the magistrate's death, the RPD asked about the steps that were taken and how Mr. XXXX had planned to proceed. [31] He testified that he had been contacted by his wife. As to what steps he had taken, he indicated that he had unsuccessfully tried to contact someone close to the victim. Later, he allegedly went to protests to talk to people and gather their comments. This summarizes the investigation he allegedly conducted and for which he was allegedly threatened. He was unable to explain the concrete steps taken to bring about the most important event of his career. Attending protests to gather comments from people does not seem to be a reliable XXXX technique. [32] In my opinion, the RPD's credibility finding based on Mr. XXXXanswers about his XXXXcareer is correct. [33] Furthermore, in the absence of reasonable explanations about his training, work or career, the culminating event, namely, the threat stemming from the investigation, should be considered lacking in credibility. Thus, I consider that the RPD's finding about the credibility of his work as a XXXX was correct. [34] The RPD looked at numerous aspects of Mr. XXXXacademic and professional background. The appeal memorandum alleges that Mr. XXXXproblem stems from his work as a XXXX and that the RPD erred in placing so much importance on the academic gaps that were raised. [35] I do not agree. From the moment when the course of study that led to a XXXX career was not considered credible, it became reasonable to ask about what transpired afterwards. In this case, the RPD analyzed the claim as a whole, taking care to examine each facet. Exhibits [36] Mr. XXXX submitted into evidence: - a confirmation of employment from XXXX XXXX; - a copy of his XXXXID card; and - a diploma from XXXX. [37] The RPD did not give any weight to the documents because of its findings as to their credibility and the findings made about them, namely: - the first and last names being reversed on the documents; - the confirmation of a XXXX position held for a period when he was not doing that job for part of the period in question; - the gaps and omissions regarding the institution where he had allegedly studied XXXX. [38] In my opinion, not giving any weight to this set of documents for the reasons raised by the RPD is correct. The reversal of the names might not in itself be sufficient, given the many instances where the documents reversed his names. However, it still raises the question why such a reversal would appear in an attestation letter. Additionally, there is reason to question, as the RPD did, attestation of a position held for a period of time contradicted by the appellant. [39] The ID card refers to a position at the XXXX, and aside from the names being reversed, there is no basis for setting it aside. However, it cannot exist in a vacuum and cannot outweigh the other shortcomings noted. [40] The diploma cannot outweigh the credibility factors noted earlier about his incorrect knowledge with regard to the name of the institution and the omission of only that one institution from his academic timeline. CONCLUSION [41] Pursuant to subsection 111(1) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD that XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Richard Sheitoyan Me Richard Sheitoyan October 30, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-22416 RAD.25.02 (April 4, 2019) Disponible en français 7 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