MB8-06522

RAD File No. / No de dossier de la SAR : MB8-06522 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 1, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Gisela G. Barraza Conseil(s) (de la/des) personne(s) 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 is alleging that he is the victim of threats arising from a family dispute between his mother and her family. He has had a multiple entry visa for the United States since XXXX 2015 and alleges that he entered the United States then for the first time to visit and a second time, in XXXX, to flee. After two years on American soil, he allegedly entered Canada, fearing that the Trump administration would deport him to Haiti. [2] In its decision rendered on February 28, 2018, the Refugee Protection Division (RPD) found that he was not credible because of serious omissions and numerous inconsistencies. [3] The memorandum of appeal alleges that the RPD's findings regarding the credibility of Mr. XXXX are not reasonable, as they are based on implausibilities and minor contradictions. DETERMINATION OF THE APPEAL [4] Under paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination 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 after carrying out its own analysis of the record by applying the correctness standard of review.1 The exception to this rule concerns situations where the RPD enjoys a meaningful advantage in assessing the credibility of or weight to be given to the oral evidence it hears, in which case the RAD may then show some deference.2 I will apply the correctness standard of review as I conduct an independent analysis of the record, which includes examining all of the evidence and listening to the recording. ANALYSIS [6] The determinative issue is credibility. i- Silence as to his uncle's threat [7] Mr. XXXX indicated in his account that he had received death threats from his uncle at the end of XXXX XXXX XXXX while he was visiting land with his mother. No mention was made of this event that specifically targeted Mr. XXXX. [8] The RPD found that Mr. XXXX's credibility had been undermined by his silence regarding this threat in the Basis of Claim Form (BOC Form). [9] The memorandum alleges that despite failing to identify the uncle, the BOC Form does mention threats from his mother's family members. [10] According to the account, it was when he was in the United States in XXXX 2015 that his mother was allegedly threatened. The allegation suggests that the insults, death threats, XXXX XXXX XXXX XXXX XXXX were carried out against her, her children and XXXX XXXX during that period. It is not clear in the account when these events allegedly took place. [11] According to his testimony, Mr. XXXX was specifically targeted by a threat from his uncle upon his return in XXXX. Instead of reporting this personnalized incident, he alleges that he simply reported all of the events in general to which his mother had been subjected without taking into account when they reportedly ocurred. [12] However, if the threats were received while he was in the United States, there is cause to question why he knowingly returned. If the threats and other acts of violence ocurred after his return, there is cause to examine Mr. XXXX's actions under another angle. [13] The threat made by Mr. XXXX's uncle against him is an important element because it is personnalized. It would have seemed obvious to me to indicate this event in the account. It concerns him directly and is related to his own person. Failing to include it in the BOC Form and settling for generalities makes the ocurrence of this event less credible. The explanation provided by Mr. XXXX to understand the reasoning behind the omission is not satisfactory, that he simply put everything together without any distinction as to when the acts were committed, the people who committed them and the people targeted by the actions. While he may be targeted for belonging to a group, this threat becomes more tangible when it is specifically directed. The RPD's finding iscorrect. ii- Return to Haiti after threats [14] Mr. XXXX stated that he returned to Haiti in XXXX after having been informed by his mother of the threats received in XXXX. According to him, she was confronted by members of her family armed with machetes when she was going to her properties. [15] The RPD found this return to Haiti problematic following the stay in the United States, when he knew of the threats made against him. [16] The memorandum states that the seriousness of the threats was only revealed after his return. It goes on to state that the RPD does not justify how returning given the threats is inconsistent behaviour. [17] It appears from the testimony that the threats proferred against Mr. XXXX's immediate family were revealed while he was in the United States. He was aware of being targeted by these threats and knew that his mother had been confronted by armed individuals, making the threat even more tangible. He stated that, being the eldest, the sole purpose of his returning to Haiti was to resolve this problem. [18] Therefore, there is an inconsistency in knowing of a threat profferred against him and returning to the place where this threat could be put into action. While the memorandum alleges that the threats only ocurred after his return, the evidence on record, including Mr. XXXX's testimony, is clear that the threats were made before his return. The reason for this hasty return, which was meant to be temporary, was to [translation] "deal with" the threats. [19] Therefore, I consider the RPD's finding as to the lack of credibility regarding the threats profferred against Mr. XXXX to be correct. iii- An extended XXXX XXXX XXXX stay in Haiti without any problems [20] The RPD was of the opinion that Mr. XXXX's extended stay in Haiti from XXXX to XXXX 2015 displayed a lack of fear. [21] The memorandum alleges that this observation is unreasonable because the whole of Mr. XXXX's problems ocurred in the period between XXXX and XXXX. Furthermore, it also alleges that the conclusion drawn from the fact that he did not leave until XXXX is unreasonable because it was explained by his lack of money. [22] As mentioned above, it appears that the threats and troubles existed before his return in XXXX. They reportedly worsened over time, culminating in a XXXX in his mother's XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The BOC Form mentions such an event, but does not state when it ocurred. When asked about the date the event ocurred, Mr. XXXX appeared pensive and seemed to have difficulty placing it in time. He also testified that under the pressure his mother concededand gave up the property she had inherited. When asked when she allegedly did this, Mr. XXXX was unable to answer. [23] Furthermore, according to the explanations provided, the planned return to Haiti was meant to be more of a short stay. In that sense, there is reason to wonder how Mr. XXXX planned to stay in Haiti only briefly knowing that he lacked the funds to leave in the short term. Therefore, the RPD's finding, namely that returning to Haiti and staying there such a long time undermines his credibility, is correct. iv- Lack of documentation concerning his mother's XXXX [24] The RPD found it surprising that Mr. XXXX had access to documents establishing his mother's XXXX. It did not believe that they had been stolen when his cousin was preparing to deliver them to him. [25] The memorandum alleges that it is unreasonable for the RPD to declare that it does not believe the explanation while speculating on actions to make a finding of implausibility. [26] The RPD noted the confusion in Mr. XXXX's testimony and provided as an example the circumstances surrounding the lack of evidence in regard to his mother's property. [27] However, Mr. XXXX was aware of the importance of this evidence since he allegedly asked that someone provide it to him. The loss of evidence that is known to be useful would usually be noted, whether with his counsel or at the beginning of the hearing. Remaining silent on the circumstances of this evidence until the RPD questions its existence is surprising. [28] The RPD's finding is not speculative, but based on sound reasoning. The RPD's decision is correct. [29] In making its finding, the RPD considered that Mr. XXXX had been warned of a threat while he was in the United States. Intended to be brief, his stay in Haiti was explained by his desire to resolve his mother's problem. However, the extension of this stay is allegedly explained by a lack of funds to leave. It appears obvious that if one is planning to stay somewhere for only a short time, not having enough money to follow through on that plan is not unexpected or surprising, even when he was preparing to leave the United States. [30] Lastly, the RPD's finding that Mr. XXXX would not face a different risk from his fellow citizens despite having lived abroad was not contested, and I agree with the RPD's finding. [31] Therefore, considering all the above-mentioned elements, I find that the RPD's decision is correct. CONCLUSION [32] Under paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the RPD's determination that XXXX XXXX is not a Convention refugee or a person in need of protection. Richard Sheitoyan Me Richard Sheitoyan March 1, 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. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-06522 RAD.25.02 (September 18, 2018) 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 RAD.25.02 (September 18, 2018) Disponible en français