MB6-04359

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 File No. / N° de dossier de la SAR : MB6-04359 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision October 20, 2017 Date de la décision Panel Paule Robitaille Tribunal Counsel for the appellant(s) Me Juan Cabrillana Conseil(s) du (de la/des) Appelant(e)(s) Designated representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX, a citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD) that rejected his refugee protection claim, determining that he is not a "Convention" refugee under section 96 of the Immigration and Refugee Protection Act (IRPA), or a "person in need of protection" within the meaning of section 97 of the same Act. [2] The appellant is neither presenting any new evidence before the Refugee Appeal Division (RAD) nor requesting a hearing before it. DETERMINATION [3] The RAD dismisses the appeal and confirms the determination of the RPD, namely, that the appellant is not a "Convention" refugee or a "person in need of protection," yet, for reasons other than those given by the RPD. BACKGROUND A. Allegations [4] The appellant, a XXXX XXXX for the company XXXX in Port-au-Prince, states that he is being sought by a drug trafficker named XXXX XXXX. He submits that the latter is looking for revenge because the appellant reported him to the police and to MINUSTA (United Nations Stabilization Mission in Haiti), which resulted in his arrest on XXXX XXXX or XXXX, 2015. [5] The appellant had problems with XXXX XXXX and his gang between XXXX XXXX and XXXX XXXX or XXXX, 2015. For the entire time that XXXX was incarcerated, from late XXXX 2015 to XXXX XXXX, 2016, the appellant received no threats. But everything started up again the day that XXXX XXXX was released, on XXXX XXXX or XXXX, 2016. On XXXX XXXX, 2016, he was beaten in his home by XXXX men. Afraid, he quit his job and went into hiding until his departure for the United States on XXXX XXXX, 2016. He alleges that, during that time, he received a number of threatening calls on his mobile telephone, up until his departure. [6] Since the appellant left Haiti, XXXX XXXX has also gone after his younger sister. He submits that XXXX is dangerous and could find them throughout the country. B. RPD decision [7] The RPD found that the appellant had not established the credibility of his allegations. The member relied mainly on three elements: * A glaring contradiction between his IMM-5669 form concerning the date of the end of his employment with XXXX and what he stated at the hearing;1 * The implausibility supposedly raised by the fact that the appellant's sister was able to stay in Haiti without being targeted by XXXX XXXX;2 * The behaviour of the appellant, who did not claim asylum during his one-month stay in the United States and the explanation for doing this, which were not reasonable, according to the RPD.3 C. Appellant's arguments [8] The appellant submits that the RPD's three findings are completely unreasonable, abusive and based on erroneous findings of fact.4 I will come back to the details of his arguments later in my analysis. ANALYSIS A. Scope of the appeal [9] It should be noted that the RAD intervenes when it deems that the RPD has committed an error of fact or of law or of mixed fact and law.5 It must then decide whether the RPD decision is correct.6 [10] With respect to the credibility of the oral evidence, the RAD shows deference to the RPD's analysis where it enjoys a meaningful advantage in making a particular finding.7 In this case, the RAD assessed each of those findings using the standard of reasonableness, as set out in X(Re).8 It then assessed the overall credibility, determining whether the RPD assessment contains any errors or, in other words, the RAD determines whether the RPD decision is correct. [11] Thus, after an exhaustive review of the RPD decision, the RAD conducts its own analysis and considers all of the evidence on the record9 in light of what the appellant puts forward in his memorandum.10 B. Analysis of the RPD decision [12] I find that, in its reasons, the RPD sometimes focuses on peripheral elements of the refugee protection claim, and sometimes on the analysis of erroneous facts. However, the appellant's testimony at the hearing before the RPD on June 10, 2016, contains implausibilities and a major omission that were not sufficiently considered by the member in her reasons, but that have led me to conclude that the claim lacks credibility. C. Analysis of the RPD reasons for decision a. Inaccuracy in the document IMM-5669 [13] The appellant mentioned during the RPD hearing that he worked for the XXXX group as a XXXX up until XXXX XXXX or XXXX, 2016,11 that is, until XXXX XXXX was released. It was at that time that XXXX men allegedly beat him up badly. He alleges that he stopped working and went into hiding. [14] The RPD noted that the information provided with respect to his employment at question 8 of the IMM-5669 form differs from what he stated at the hearing (it uses the term [translation] "inconsistency" between his testimony and the information on the form). In that document, the appellant writes that he worked for XXXX from XXXX2014 to XXXX2015 and, on the next line, he writes that he worked as a XXXX XXXX in January and February 2016, but does not specify who his employer was. The appellant explained at the hearing that he had made a mistake. He stated that he ended his employment at XXXX on XXXX XXXX, 2016, and left for the United States two weeks later, on XXXX XXXX. In light of those explanations, the member concludes that that "inconsistency" results in a lack of credibility of the appellant's testimony. She writes: [Translation] The panel is not satisfied with this explanation and rejects the claimant's testimony as not credible. If the claimant had stopped working for XXXX on the day when he was threatened by XXXX XXXX, XXXX XXXX, 2016, and then went into hiding at a friend's home starting on XXXX XXXX, 2016, it is reasonable to believe that he would have mentioned spontaneously in his IMM 5669 form that he had stopped working in XXXX 2016. The panel is not satisfied with that explanation and finds that that contradiction, with no satisfactory explanation, undermines the claimant's credibility with respect to the threat he had received from XXXX XXXX on XXXX XXXX, 2016, as well as the fact that he had stopped working on XXXX XXXX, 2016, and that he had gone into hiding on XXXX XXXX, 2016.12 [15] Contrary to the RPD, although it enjoyed a certain advantage because it heard the oral evidence, I find that it is unreasonable to conclude that the testimony lacked credibility based on a detail like that. Of course, on the face of it, there is a discrepancy between the appellant's testimony and what he wrote in the IMM-5669 form. This is an error, certainly, but a minor one. The fear of XXXX XXXX is not related to the appellant's work. Yes, he left his work at the end of XXXX 2016 and not at some time in XXXX2016, as indicated on the form, but it is not disputed that he left Haiti on XXXX XXXX, 2016. To find that the appellant is not credible because he made a mistake of two weeks in his IMM-5669 form or because he did not specifically indicate "XXXX" in a box on the IMM-5669 form, seems to me, in fact, picky. Moreover, the member's questions at the hearing focused mainly on the fact that the appellant did not write in that form that he was working for XXXX in XXXX 2016 and not on the duration of his employment, which, according to the document, went beyond XXXX XXXX or XXXX, 2016, when the threats resumed. All this does not affect the central allegations of the claim. I therefore find that the RPD's finding is unreasonable. b. The appellant did not claim asylum in the United States [16] The fact that the appellant did not claim asylum in the United States during his four-week stay there is also not sufficient to undermine the credibility of the entire story. The appellant explains that, when he arrived, his brother who was taking him in was ill and he could not assist him with his endeavours. He was also having marital problems and his wife refused to allow the appellant to live with them. The appellant knew no one in the United States apart from his brother, and his sister-in-law objected to his living in their home. He did not speak English. At the same time, a female friend living in Canada invited him to join her in Montréal, where people speak French, and told him that she would help him to claim refugee protection. The appellant, who was a few hours from the Canadian border in Massachusetts, who was not welcome at his brother's home and who spoke very little English, therefore decided to leave and claim refugee protection in Montréal, where people speak French and where a female friend was offering him help and a place to live. In that context, his choice is understandable. I find that his explanations are satisfactory and not sufficient to find that the story is not credible. The member's conclusion on this point is wrong. c. The stalking of his younger sister [17] In his memorandum, the appellant states that the RPD erred by indicating that XXXX XXXX was not able to find his younger sister. I must confirm that the appellant, in fact, stated at the hearing and wrote in his BOC Form that his sister has been located by XXXX and his gang since he left Haiti in XXXX 2016, contrary to what the member stated in her reasons at paragraphs 24 to 26. [18] The member writes at paragraph 24: [translation] "the claimant testified that XXXX XXXX has not followed through with his threats or even visited his sister since he left Haiti because he does not know where she is." Yet that is not what the claimant stated at the hearing and in his BOC Form. At the hearing, the appellant explains at 00:27:30 minutes that his sister allegedly found herself face-to-face with XXXX on XXXX XXXX, 2016, that is, several months after he left Haiti, which is supported by an oral report made to the police and submitted as evidence at the hearing before the RPD. As the appellant notes in his memorandum, he states in response to question 2h) of the BOC Form that XXXX found his sister after she had moved in with her female friend, and after she had changed her mobile number. Thus, I must conclude that the RPD erred on this specific point, by failing to report correctly what was stated or written, that is, whether or not XXXX had tracked down the appellant's younger sister. [19] However, this does not make the allegations described by the appellant at the hearing or in his BOC Form any more plausible. On the contrary, if XXXX XXXX found himself face-to-face with the appellant's sister and knew how to locate her when she was using different mobile telephones, it is surprising that that man, so enraged and driven by such a thirst for revenge, did not attack the appellant's younger sister or take any action. [20] In fact, apart from that specific error, I, like the RPD, am of the opinion that the profile of XXXX XXXX as described by the appellant is the complete opposite of the facts alleged. It is not a matter of an [translation] "inconsistency,"13 but rather of a glaring contradiction. It is that contradiction between the image of the powerful and ruthless drug trafficker painted by the appellant throughout the hearing and the allegations of never-ending death threats and the futile actions of this criminal and his gang for over a year and half that make this story completely implausible. D. Other reasons a. Implausibility of the story [21] The Federal Court indicates that, while caution must be exercised, the RPD can make reasonable findings based on implausibilities, common sense and rationality, and reject evidence if it is not consistent with the probabilities of the case as a whole.14 I also considered Valtchev,15 which the appellant makes sure to cite in his memorandum and which is the case here. It reads: However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant.16 [22] In his argument, counsel for the appellant notes that in Haiti, [translation] "when you are involved in drugs, you can buy justice; you control the system." To support his statements, he submitted a number of articles.17 He states that even the son of former President XXXX controlled the drugs in the country.18 [23] XXXX, the appellant states, is very powerful. According to his testimony, XXXX XXXX is an [translation] "important businessman" in the XXXX XXXX, a major XXXX XXXX in the capital and the XXXX of a gang who has contacts throughout the country. He allegedly even has contacts in the police. The appellant stated at the hearing that XXXX XXXX knows very well where he lives; he is the lover of a neighbour who lives four doors down from him. [24] Moreover, the appellant stated at the hearing that XXXX and his accomplices could find him and his sister simply by making calls from their mobile telephones; that is how they allegedly located his younger sister in XXXX 2016. XXXX XXXX, the appellant continued, always knows how to find them, him and his sister, regardless of where they are in the country. [25] XXXX XXXX spends time and energy in finding the appellant because he is furious about having been reported by the appellant on XXXX XXXX, 2015; he is convinced that it is because of him that XXXX put him in prison for a year. He was humiliated. He wants revenge. He has made dozens of threats to kill him directly or through [translation] "friends." And yet, after a year and a half, after so many threats and with so many means, he has never taken any action. His threats never go anywhere. That is what is implausible and contradictory. [26] For approximately 10 days (between XXXX XXXX and XXXX XXXX, 2015), the appellant allegedly received a dozen threatening calls in all (from XXXX and his accomplices). It is surprising that that powerful criminal did not take any action or that he did not send his men to beat him up. Even if the appellant went to hide at the home of a female friend, with all the means described at his disposition, it is reasonable to believe that in 10 days, contrary to what the appellant states, XXXX XXXX could have located him in Port-au-Prince. [27] Then, XXXX XXXX was arrested by XXXX on XXXX XXXX or XXXX and everything stopped for a year. It was dead clam. The member asked why, and the appellant speculated and answered that it was probably because XXXX XXXX was put in prison and his men were also afraid of being arrested. First, if XXXX XXXX wanted to kill the appellant, given that he is powerful and the leader of a well-organized network, as argued by the appellant, it is not because he was in prison that his associates could not go after him. On the contrary, if his gang is powerful and well-connected with the authorities, it is very likely that it would not wait a year to exact revenge for their boss, especially when the appellant was very easy to find because he was the neighbour of XXXX girlfriend. [28] The appellant returned to his home at the beginning of XXXX 2015 and life resumed as normal, without problems for a year, until XXXX was released at the end of XXXX 2016. Then, as soon as XXXX was released, the telephone calls threatening to kill him started up again. The next day, two men from XXXX gang beat him up, but fled as soon as neighbours showed up. Later, an associate of XXXX called him and told him: [translation] "We know where you work, we know where you go, and we can take you wherever you are and when we take you, we will kill you." Identical calls followed at the rate of one every two days, between XXXX XXXX and XXXX XXXX, 2016, the date on which he left for the United States. With the appellant gone, XXXX allegedly harassed his younger sister to exact his revenge. He accused her of hiding the appellant. He called her often. She changed her mobile telephone number but XXXX still managed to find her. On XXXX XXXX, 2016, she allegedly found herself face-to-face with the criminal, who again threatened to kill her but then let her go. And the appellant stated at the hearing on June 10, 2016, that this is still going on. [29] The appellant explained at the hearing that his younger sister is constantly moving and that is why XXXX XXXX and his gang cannot catch her. However, the appellant also stated that they can trace all her telephone conversations. She found herself face-to-face with him. This is a contradiction and the appellant has no explanation to clarify all this more realistically. If XXXX did exist and was after the appellant, as he claims, he would have definitely gone after his sister, especially since she was easy to find. [30] He claims that she is a student at the XXXX XXXX XXXX in Port-au-Prince. Nothing indicates that she has stopped her studies. It would therefore be very easy for those criminals to go after her over there. Yet they never have. [31] I find all of this implausible. It is reasonable to believe that a person who was going to be hit or killed would not be warned by telephone or orally if, in fact, someone wanted to kill or hit that person, for a year and a half. Action would have been taken a long time ago, period. [32] In light of the case law from the Federal Court cited above, considering the description the appellant gave of XXXX XXXX and his gang, and considering the documentary evidence submitted by the appellant before the RPD that indicates that drug traffickers enjoy a significant degree of impunity in Haiti, I find that the appellant's story is implausible. [33] The police report made from a statement from the appellant, submitted as evidence before the RPD, states the same allegations, which are implausible. I therefore give no probative value to that document. b. Major omission [34] There is also a major omission that the member addressed at the hearing but that was omitted in her reasons. [35] In her examination, the member pressed for the exact chronology of the threats, their frequency, their content and the various reports that the appellant and his sister made to the police. [36] Around XXXX XXXX, 2015, XXXX XXXX girlfriend told him that the drug trafficker was looking for someone to distribute his merchandise in the neighbourhood. On XXXX XXXX, 2015, he allegedly went to report XXXX to XXXX. On XXXX XXXX, 2015, XXXX, who had allegedly learned-from where we do not know-that the appellant had reported him, pushed him and threatened to kill him for revenge. He fled the neighbourhood. Quickly, that same day, the appellant went to file a complaint with the police in Port-au-Prince. Between XXXX XXXX, the day of the complaint, and XXXX XXXX or XXXX, 2015, the day of the arrest of XXXX by XXXX, XXXX XXXX allegedly called the appellant five or six times threatening to kill him. His henchmen apparently did the same five or six times as well, threatening to assault or kill him. [37] Those numerous threatening calls are omitted in the appellant's written account. The member therefore asked him why he had omitted such an important fact in his written account. The appellant answered that he thought it was the second part of his story that was important, that is, after XXXX XXXX was released from prison. I reject that explanation. A dozen calls with death threats in 10 days is no common fact. The wording of question 2 clearly specifies that the claimant is to explain in detail what happened to him and why he fears being mistreated. Those repeated death threats in XXXX 2015 are traumatizing and relevant elements. If the appellant had indeed experienced them, it is reasonable to believe that he would have mentioned them spontaneously in his written account, for which he had a certain time to prepare and which he completed with the help of his counsel, an expert in immigration. In that part of the written account, he gives other details. Why not these as well? We do not know. That omission in the written account is important and leads me to conclude that those threats are fiction, like the other allegations of his claim. [38] Therefore, considering that important omission and the implausibility of his entire story, I find that the appellant has failed to establish the credibility of the allegation that he is being sought by a drug trafficker in Haiti. [39] It is therefore not necessary to analyze the internal flight alternative. CONCLUSION [40] Thus, the RAD confirms the determination of the RPD, but for different reasons. I therefore determine that the appellant is not a "Convention" refugee under section 96 of the IRPA or a "person in need of protection" under section 97 of the same Act. [41] The appeal is therefore dismissed. Paule Robitaille Paule Robitaille October 20, 2017 Date IRB translation Original language: French 1 See paragraphs 21 to 23 of the RPD decision. 2 See paragraphs 24 and 25 of the RPD decision. 3 See paragraphs 26 to 30 of the RPD decision. 4 See paragraph 26 of the appellant's memorandum. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 6 Idem. At paragraphs 59, 64, 78 and 103 the Honourable Justice Gauthier explains what she means by this standard of "correctness." 7 X(Re) 2017 CanLII 53034 (CA IRB) The three-member panel analyzes the deference that the RAD should give to the RPD's findings of credibility of oral evidence. See, among others, paragraphs 72 and 116. 8 Idem. 9 Idem, paragraph 103. 10 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paragraph 103. 11 He mentions at the hearing on January 25, 2015. 12 See paragraph 23 of the RPD decision. 13 In her decision, the member mentions a significant inconsistency at paragraph 24. 14 Alizadeh, Satar v. M.E.I. (F.C.A., No. A-26-90), Stone, Desjardins, Décary, January 11, 1993; Aguebor, Clement v. M.E.I. (F.C.A., No. A-1116-91), Marceau, Desjardins, Décary, July 16, 1993. Published: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Shahamati, Hasan v. M.E.I. (F.C.A., No. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994, matter in which the Court declared that "the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense." See also Oduro, Prince v. M.E.I. (F.C.T.D., No. 92-A-7171), Noël, June 2, 1993 (the claimant escaped from prison with the help of a guard and did not encounter any checkpoints when leaving the country); Chand, Saroop v. M.E.I. (F.C.T.D., No. 92-T-2035), Gibson, January 26, 1994. 15 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001, FCT 776. 16 Ibidem, paragraph 7. 17 See the articles in a bundle at pages 38 to 53 of the appellant's exhibits before the RPD. 18 See the article "Olivier Martelly a été emprisonné pour trafic de drogue à Miami et libéré sous caution de 5 millions" [Olivier Martelly jailed for drug trafficking in Miami released on $5 million bail] at pages 38 and 39 of the appellant's exhibits before the RPD. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-04359 12