MB7-26090

RAD File No. / No de dossier de la SAR : MB7-26090 Private Proceeding / Huis clos De Novo 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 February 5, 2021 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal François Kasenda Kabemba 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] On July 31, 2020, the Federal Court allowed an application for judicial review and referred this case to the Refugee Appeal Division (RAD) for re-determination. [2] Therefore, the case before me is a de novo appeal. [3] XXXX XXXX, citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD), dated November 28, 2017, rejecting his refugee protection claim filed pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [4] The RPD found that the appellant failed to credibly establish his allegations because of several serious omissions and contradictions, as well as a lack of evidence that could have been reasonably obtained. The appellant submits that the RPD erred in basing itself on peripheral omissions, rejecting the corroborating evidence on the record, ignoring the objective documentary evidence and applying the wrong burden of proof. He is asking the RAD to allow the appeal and grant him protection. OVERVIEW [5] The appellant became a member of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, in XXXX 2014, and became XXXX XXXX XXXX XXXX XXXX XXXX in XXXX 2015. He alleges that as a XXXX, he published an article in XXXX XXXX, a newspaper, in which he severely criticized the ruling political regime and laid outXXXX XXXXproposed solutions. [6] The day after it was published, on XXXX 13, 2016, unidentified armed individuals came to his house. When they did not find him there, the individuals beat and raped his sister and stole [translation] "personal information such as photographs, XXXX documents, [his] address book and the telephone numbers of XXXX collaborators" and his XXXX notebooks. [7] That same evening, the appellant and his family sought refuge at his brother's house, in another part of XXXX XXXX XXXX XXXX XXXX. On XXXX XXXX, 2016, he and his wife, child and sister left XXXX XXXX XXXX XXXX XXXX to seek refuge with his parents in XXXX XXXX XXXX XXXX XXXX. [8] The appellant left Haiti on XXXX XXXX, 2016, with a visa he had obtained several months earlier. After he left, he alleges that his wife and his parents received anonymous threatening calls and that threats were painted on the walls of his parents' house. DETERMINATION [9] After conducting an independent analysis of all the evidence on the record, including the hearing recording, I share the RPD's concerns about the appellant's credibility and confirm its determination that the appellant failed to establish that he is a refugee or a person in need of protection. [10] The appeal is dismissed. ROLE OF THE REFUGEE APPEAL DIVISION [11] The RAD is required to undertake its own analysis of the evidence in light of the appellant's arguments in order to determine whether the RPD was correct in relation to each alleged error of law, fact or of mixed fact and law. The applicable standard of review is the standard of correctness, except in particular circumstances where the RAD may show deference to the RPD's assessment.1 ANALYSIS Breach of procedural fairness [12] The appellant submits that the RPD breached the duty of procedural fairness by not considering his evidence and testimony. For the reasons set out below, I am of the opinion that this argument is without merit. Credibility [13] The RPD found that the claimant is not credible with regard to the alleged threats and acts of persecution related to his involvement with XXXX for the following reasons: * The appellant failed to mention in his Basis of Claim Form (BOC Form) that the president of XXXX also received telephone threats after, and even before, the article was published and that XXXX XXXX XXXX XXXX XXXX. The RPD did not accept his explanation that the omission was due to the fact that he was in a state of panic and shock. * The appellant failed to mention in his BOC Form that other XXXX members had also been threatened, and his testimony was vague and not spontaneous on this matter. The RPD was not satisfied with his explanation that it had not occurred to him to mention this fact in his BOC Form. * The appellant did not gather any corroborating evidence from XXXX related to the problems he had in 2016. The RPD was not satisfied with his explanation that he had not thought to do so. * The appellant's address and his sister XXXX's address, as declared in his visa application, do not match the information provided in his BOC Form and at the hearing. * The report from the justice of the peace makes no mention of the fact that the robbery and his sister's rape are connected to the appellant's involvement with XXXX or the publication of his article. * At the hearing, the appellant did not spontaneously mention everyone who was at the scene of the report. * The appellant failed to mention, in his BOC Form, that his brother XXXX was also threatened. * The appellant delayed claiming refugee protection in Canada, stating that he hoped to return to Haiti if things were to calm down. Omissions [14] The appellant submits that the threats against other XXXX members are peripheral details, and that he was not persecuted simply because he was a member of that organization, but rather, because of his personal political opinion expressed in a news article.2 [15] First, the appellant did not publish the article on his own behalf. The appellant explains in his BOC Form that he published the article in his capacity as XXXX XXXX. In it, he described XXXX solutions. [Translation] "[T]hat day, the XXXX XXXX newspaper gave XXXX a chance to express itself and be published." 3 This is also clear in reading the published news article. Therefore, I am of the view that the threats against the president and other members of XXXX, after this article appeared in the news, is essential information that has a direct impact on the risk the appellant would be subjected to in Haiti. [16] The appellant argues that it was not reasonable for the RPD to expect all details central to a refugee protection claim to be included the BOC Form, because this would amount to stripping the hearing of all of its relevance.4 [17] I cannot agree with that argument. In Basseghi, the Federal Court explains that, with regard to omissions in the personal information form (PIF): It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for [a claimant] to say that what he said in oral testimony was an elaboration. All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF.5 [emphasis added] [18] As explained above, the threats that the other XXXX members received were not peripheral details, but rather, important events directly related to the magnitude of the appellant's risk. It was therefore reasonable for the RPD to expect these events to be included in the appellant's written account. The RPD did not err in making a negative credibility finding because of these omissions and the appellant's vague testimony on this point. [19] I come to the same conclusion with regard to the fact that the appellant failed to mention in his BOC Form that his brother XXXX also received threats after he left Haiti. Corroborating documents Excerpt of the minutes of the registry for the peace court [20] First, I note that the appellant submitted an excerpt of the minutes from the peace court (Exhibit C-6) in support of his allegations regarding the incidents of XXXX XXXX, 2016. It is the most direct corroborating document on the record. It was prepared on the basis of the requisition the appellant and his counsel filed with the peace court and on the basis of the justice of the peace's visit the day after the attack. However, as the RPD noted, in no way does this document corroborate that the attack in question personally targeted the appellant for his involvement with XXXX or for the political opinion expressed in the article he published. [21] The appellant points out that the RPD erred in drawing a negative credibility inference from what is missing in a report that he did not write. [22] First, I note that the appellant's requisition, which is reproduced in the report of the justice of the peace, also lacks any mention of the motivation behind the attack on XXXX XXXX, 2016. In fact, all that reading Exhibit C-6 reveals is that the appellant's home was robbed by unidentified criminals on XXXX XXXX, 2016, and that his sister was physically and sexually assaulted during this incident. At the hearing, the appellant stated that he did not tell the justice of the peace that this attack targeted him personally or the reason why he was targeted because he was panicking. [23] I am of the opinion that the fact that the appellant was panicking does not satisfactorily explain his failure to mention this information-neither in his requisition to the justice of the peace nor when the justice of the peace came to the scene-even though he alleges that his sister told him that the criminals were looking for him because of what he wrote in his article. [24] This is a serious omission that further undermines the appellant's credibility. I am of the view that this case differs from the one the appellant cites,6 where a third party had a valid reason to not refer to certain incidents in their corroborating letter, as it would have amounted to acknowledging having participated in criminal activity. [25] I am also of the view that the RPD did not err in not giving any probative value to the report of the justice of the peace insofar as this piece of evidence does not corroborate the appellants' story to the effect that the attack on XXXX XXXX, 2016, personally targeted him because of his ties to XXXX and the article he published. [26] With regard to counsel being present at the scene of the incident, I note that, contrary to what the RPD retained, the report does not mention that these individuals were present during the visit from the justice of the peace. Even though I find that the RPD's finding of non-credibility on this matter is without merit, this is not determinative. Corroborating letter from XXXX [27] The Federal Court holds that corroborating evidence can be demanded in situations where the claimant can be reasonably expected to have such evidence available to them.7 [28] Furthermore, it is a matter of common sense that when there are concerns about the reliability of a witness's testimony, corroborating evidence may be required; failure to provide it justifies making negative credibility findings.8 [29] Because of the credibility issues raised, the RPD correctly questioned the lack of any corroborating evidence from XXXX with regard to the events of XXXX XXXX, 2016, connected to the publication of the appellant's article in his capacity as the organization's XXXX. [30] Even though the appellant submits that no XXXX members witnessed the events in question,9 the Immigration and Refugee Board of Canada's rules of evidence do not bar the admission of hearsay evidence. [31] The appellant failed to establish that it was impossible for him to obtain this evidence before filing his refugee protection claim, before the hearing or even before the rejection of his claim. He simply indicated that he did not think to do it. Like the RPD, I am of the opinion that this explanation is not satisfactory, given that: * his involvement with XXXX, on whose behalf he published the article, is central to his refugee protection claim; * the appellant called the president of XXXX to inform him of the attack that occurred on XXXX XXXX, 2016, and the theft of XXXX documents, two days after the attack; * during this call, the president of XXXX told him that he also received calls from unknown numbers threatening him and asking to speak to the appellant; * the appellant thought it was important to ask the president of XXXX to write a corroborating letter attesting to the fact that he was a member of XXXX in 2015, but nothing more; * the appellant had the burden of proving his allegations on a balance of probabilities and was represented by counsel for his refugee protection claim. [32] I find that the appellant's credibility is further undermined by the lack of this evidence. The RPD did not err on this matter. The threatening graffiti [33] The appellant submits that the RPD incorrectly assessed the record by rejecting the corroborating evidence that exists, namely the threatening graffiti, and focusing on evidence that does not. The appellant criticizes the RPD for not explaining why the graffiti does not corroborate his testimony.10 [34] The RPD rejected the photographs showing the threats because of the appellant's other credibility issues. The RPD did not separately analyze this piece of evidence in its decision, but this is not determinative in this case. Even if, to a certain extent, the graffiti corroborates the appellant's testimony and has a degree of probative value, I find that the reliability of this evidence is very limited. [35] First, there is no reliable evidence on the record establishing that this graffiti was actually painted on the walls of the appellants' parents' house by the criminals in question and that it was not simply fabricated. There are no dates on the photographs and there is no independent evidence attesting to who took the photographs, or the address where the graffiti was painted. Second, like the RPD noted at the hearing, the graffiti seems to have been added to the photographs. Given that the RPD had the advantage of analyzing the original photographs, I defer to its observations. Therefore, in my opinion, given that the weight of this evidence is very low,11 I find that the RPD correctly concluded that these photographs cannot offset the appellant's general credibility issues that were raised. The medical certificate [36] The appellant submits that the attack at the appellant's house and his sister's rape are corroborated by the report of the justice of the peace and a medical report, and that the RPD erred in rejecting this evidence. [37] I am of the opinion that, as explained above, although the report of the justice of the peace does not establish the appellant's allegations that the attack on XXXX XXXX, 2016, targeted him because of his political opinion, the RPD erred in rejecting this evidence because it was not an original. The RPD also erred in rejecting the medical certificate because the panel did not accept that the incident on XXXX XXXX happened as the appellant described. [38] However, I am of the opinion that even if the unfortunate events of XXXX XXXX, 2016 (the robbery and the appellant's sister's rape), occurred as established by the report of the justice of the peace and the medical certificate, as explained above, it was not established, on a balance of credible evidence, that this attack targeted the appellant or that it was motivated by his activities with XXXX, his article being published in the news, or his political opinion. After reading the report of the justice of the peace, the attack seems to have been random. The attack was more likely than not related to generalized crime, which is omnipresent in Haiti.12 Inconsistencies in the appellant's addresses and the delay in claiming refugee protection [39] I am of the opinion that the problems described above are sufficiently significant to generally undermine the appellant's credibility with regard to the basis of his refugee protection claim. It is therefore not necessary to review the RPD's reasons and the appellant's arguments regarding the inconsistencies in the addresses and the delay in claiming refugee protection. [40] In light of the foregoing, I find that the appellant failed to credibly establish that he would be subjected to a serious possibility of persecution or, on a balance of probabilities, a risk to his life or a risk of cruel and unusual punishment or treatment should he return to Haiti. The appellant's argument that the RPD lacked sensitivity and was seeking proof beyond all doubt13 is without merit. The appellant's residual profile [41] The appellant submits that, when assessing his claim, the RPD did not consider the documentary evidence reporting that journalists were murdered and received death threats.14 The appellant also made additional submissions along these lines based on the new National Documentation Package on Haiti, dated September 1, 2020.15 [42] First, I am of the opinion that the documentary evidence cited by the appellant cannot offset the above-mentioned credibility issues. [43] Second, although I accept that human rights defenders, political activists and journalists in Haiti may be subject to threats and violence,16 such events are generally rare and targeted.17 According to a 2017 report published by the Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]: [Translation] [t]here is currently no systemic repression of political opponents or human rights defenders, who freely enjoy their civil and political rights. ... few recent examples journalists who were threatened for expressing themselves publicly in the media were reported... 18 [emphasis added] In this instance, the appellant failed to credibly establish that he was targeted for publishing an article criticizing the political system in Haiti. Furthermore, even though he stated that he had been a XXXX member since 2014 and that he actively expressed critical opinions of the government on the radio, there is no evidence that he suffered any form of reprisal. In fact, no probative evidence was provided regarding XXXX managers or other organization members suffering harm within the course of their activities with the organization either before or after the article was published in XXXX 2016. [44] Contrary to the appellant's argument,19 and for the reasons set out in paragraphs 17 to 21 in the RPD's decision, it did not accept his allegations that other XXXX members were threatened because of their political opinion. I note that no independent evidence was submitted for this matter and that the appellant's testimony was found to not be credible. [45] I am of the opinion that neither the documentary evidence nor the appellant's evidence establish a serious possibility of persecution by reason of his involvement with the XXXX organization, the publication of his article in the news, or his political opinion. [46] In his additional submissions, the appellant also informs the RAD that he had XXXX XXXX XXXX after his wife's death in Haiti and that he was recovering. The RAD sympathizes with the appellant. However, I cannot rule on humanitarian and compassionate considerations. My jurisdiction is limited to applying the criteria set out in sections 96 and 97 of the IRPA. In this case, it was not established how these factors are relevant under sections 96 and 97 of the IRPA. CONCLUSION [47] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the RPD's determination that XXXX XXXX failed to establish that he is a refugee or a person in need of protection under sections 96 and 97 of the IRPA. [48] The appeal is dismissed. (signed) Bianca E. Suciu Me Bianca Eleonora Suciu February 5, 2021 Date IRB translation Original language: French 1 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, at paras. 90-91; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, at paras. 70-74. 2 P-2, Appellant's record, appellant's memorandum, at paras. 19-23. 3 SPR-1, Refugee Protection Division (RPD) record, written account, at para. 5. 4 P-2, Appellant's record, appellant's memorandum, at paras. 24-27. 5 Basseghi, Kourosh v. M.C.I. (F.C.T.D. No. IMM-2227-94), Teitelbaum, December 6, 1994. 6 See Gabila v. Canada (Citizenship and Immigration), 2016 FC 574, at paras. 39-40, cited by the appellant at para. 34 of his memorandum. (P-2, Appellant's record, appellant's memorandum, at para. 34) 7 Lopera v Canada (Minister of Citizenship and Immigration), 2011 FC 653 (CanLII); Wokwera v. Canada (Citizenship and Immigration), 2012 FC 132 (CanLii), 2012 FC 132 (CanLII) | Wokwera v. Canada (Citizenship and Immigration) | CanLII, at para 39. The Board found that the applicant had been straightforward with his answers at the hearing and that there were no major omissions, contradictions or inconsistencies between the applicant's testimony and documentary evidence. However, the Board found that the applicant had failed to provide sufficient reliable and trustworthy evidence to show that he had been persecuted in Uganda, or to show that an objective basis for his fear exists. 8 Ortiz Juarez v. Canada (Ministry of Citizenship and Immigration) 2006 FC 288 (CanLii), 2006 FC 288 (CanLII) | Ortiz Juarez v. Canada (Minister of Citizenship and Immigration) | CanLII, at paras. 7, 9. 9 P-2, Appellant's record, appellant's memorandum, at para. 28. 10 P-2, Appellant's record, appellant's memorandum, at paras. 30-31. 11 Magonza v. Canada (Citizenship and Immigration), 2019 FC 14, at paras. 29-30. In the immigration context, however, it is preferable to distinguish probative value and weight. Doing so reveals what are credibility concerns. Thus, weight is a function of credibility and probative value or, if one likes to see this in the form of an equation, weight = (credibility) x (probative value). It follows that weight can only be assessed as a function of credibility and probative value. In other words, a decision-maker cannot reach a conclusion regarding weight without having previously assessed credibility or probative value or both. 12 SAR-1, National Documentation Package (NDP) on Haiti (September 1, 2020), Tab 7.6: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018), Immigration and Refugee Board of Canada, July 3, 2018. 13 P-2, Appellant's record, appellant's memorandum, at paras. 45-53. 14 P-2, Appellant's record, appellant's memorandum, at paras. 54, 58. 15 P-3, Appellant's additional submissions to the RAD, dated January 17, 2021. 16 SAR-1, NDP on Haiti (September 1, 2020), Tab 2.9: Summary prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15(c) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21: Haiti, United Nations. Human Rights Council. August 24, 2016; at para. 55, Tab 2.6: Haiti. Freedom in the World 2020, Freedom House, 2020; at p. 8, Tab 2.7: Rapport annuel sur la situation des droits de l'homme en Haïti. 1er juillet 2015 - 31 décembre 2016 [annual report in the human rights situation in Haiti. July 1, 2015 - December 31, 2016], United Nations Stabilization Mission in Haiti, July 2017, at pp. 25-26. 17According to Freedom in the World 2020, one journalist was killed in 2019 because of their work. The death of Jeudy Charlot, the founder of an LGBT+ group was also reported that year (Tab 2.9). Three other incidents were described in the United Nations Stabilization Mission in Haiti's report for the period of July 2015 to December 31, 2016, with regard to threats against the founders of a community radio station in Les Irois; an attempted arson of a radio station and shots fired at the Kiskeya and Télé pluriel radio stations (Tab 2.7). The report states that members of the "Ensemble des citoyens compétant à la recherche de l'égalité des droits de l'homme," [gathering of competent citizens in search of equal human rights] organization alleged they were harassed and threatened because they were critical of Mr. Martelly's presidency. A threatening letter and a bullet were sent to the executive director of the Réseau national de défense des droits humains [national network of human rights protection], accusing him of preventing the publication of the real results of the presidential elections of November 2016 (Tab 2.5). 18 SAR-1, NDP on Haiti (September 1, 2020), Tab 2.5: Rapport de mission en République d'Haïti du 26 mars au 7 avril 2017 [report on mission in the Republic of Haiti from March 26 to April 7, 2017]. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons], at para. 1.1.2. 19 P-2, Appellant's record, appellant's memorandum, at para. 59. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB7-26090 RAD.25.02 (January 2020) Disponible en français 12 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