MB9-08500

RAD File No. / Nº de dossier de la SAR : MB9-08500 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 September 1, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Jamal Addine Fraygui 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] This is the appeal filed by XXXX XXXX, a citizen of the Republic of Haiti, against a Refugee Protection Division (RPD) rendered on April 10, 2019, rejecting his refugee protection claim. [2] The written account found in the Basis of Claim Form1 (BOC Form), submitted in support of his refugee protection claim, is summarized below. It should be noted that the appellant amended his written account twice before the hearing. [3] The appellant fears for his safety and for his life in Haiti after he refused to comply with the demands of a criminal named XXXX and his two accomplices, who demanded that he illegally XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, without the XXXX XXXX XXXX, while he was working for the XXXX XXXX XXXX [XXXX XXXX XXXX] in XXXX 2016. He also claims that he was a victim of an attack and an armed robbery on XXXX XXXX, 2017, as well as a kidnapping attempt by two men on a motorcycle on XXXX XXXX XXXX 2017. He states that he then hid in his home for XXXX days and afterwards filed a police complaint for the two incidents mentioned above. The appellant was later informed that XXXX was responsible for the kidnapping attempt. He states that he left for the United States on XXXX XXXX XXXX 2017, and arrived in Canada on XXXX XXXX XXXX 2017. [4] The RPD rejected the appellant's refugee protection claim for lack of credibility. [5] On appeal, the appellant states that the RPD failed to correctly assess the appellant's credibility and that this influenced its decision. He submits the following arguments, which are broken down into sub-points: 1- The RPD erred by concluding that the appellant should have filed a complaint with the police following the incidents on XXXX XXXXand XXXX, 2016, despite his employer's instructions. 2- The RPD erred by concluding that the appellant's behaviour was not consistent with that of someone who fears for their life in Haiti. [6] The appellant is asking the Refugee Appeal Division (RAD) to allow this appeal concerning the RPD's decision, to order an oral hearing before it decides on this appeal, and to set aside the RPD's determination. [7] The appellant is not asking to present any new evidence under subsection 110(4) of the Immigration and Refugee Protection Act2 (IRPA) but, as stated in the conclusion of his memorandum, is requesting an oral hearing pursuant to subsection 110(6) of the IRPA. [8] The Minister's representative did not intervene on appeal. DETERMINATION [9] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination that XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [10] The appeal is dismissed. Scope of the appeal [11] For questions of fact, law, and mixed fact and law, the RAD must apply the correctness standard of review in accordance with Huruglica. [12] I conducted an independent analysis of all the evidence on the record, after carefully listening to the recording of the RPD hearing, in order to form my own opinion about this refugee protection claim and to determine whether the RPD's decision is correct. Oral hearing before the Refugee Appeal Division [13] The appellant is asking the RAD to hold an oral hearing under subsection 110(6) of the IRPA. Subsection 110(6) of the IRPA states that the RAD may hold an oral hearing if, in its opinion, there is new evidence that is admissible and meets the three conditions listed.3 In this case, I am of the opinion that there is no cause to hold an oral hearing since no new evidence has been submitted before the RAD and, as a result, found admissible pursuant to subsection 110(4) of the IRPA. [14] For these reasons, there is no cause to hold an oral hearing before the RAD. ANALYSIS [15] Having considered all the testimonial and documentary evidence on the record, like the RPD, the RAD finds that the appellant is not credible. [16] The appellant believes that the RPD failed to properly assess his credibility and that the impact on the decision is such that the appellant would not be persecuted in his country. [17] The very essence of this claim is based on credibility. [18] After listening to the recording of the hearing, it is clear that the appellant's testimony is disjointed at times and that he does not wait for the member to finish asking the questions, rushing to cut the member off to provide an answer. This was irritating. [19] The first matter mentioned in the memorandum is that the RPD erred by concluding that the appellant should have filed a complaint with the police following the incidents on XXXX XXXX and XXXX, 2016. He adds that he followed his employer's instructions. The RPD concluded that the lack of effort to file a complaint and to ask the authorities for protection is inconsistent with the fear he alleges. What about his testimony? [20] At the beginning of the hearing, the appellant stated that he fears a group, a very influential gang. When asked to explain what he meant by a group, he stated that it was armed individuals: [translation] "powerful men who want me." He then stated he fears XXXX and his gang. Yet, it was not until one year later that he learned who XXXX is, through a friend named XXXX XXXX XXXX XXXX. [21] On XXXX XXXX XXXX 2016, XXXX and other individuals came to the office where the appellant worked in order to add XXXX XXXX XXXX XXXX XXXX XXXX. XXXX appeared and demanded to XXXX XXXX XXXX XXXX. The appellant responded that he could not do this because it was against the law. Since there were many people in the office, the appellant asked him to leave, but the exchanges continued. He thought he was a crook. In order to make him leave, the appellant gave him his telephone number on the spot. He stated: [translation] "I didn't realize that this could be fatal, this wasn't the best strategy." He then reported this incident to his superior. [22] The individuals returned the following day. They threatened him and told him that he would regret this. The appellant grabbed his telephone to call the police and the individuals fled. Once again, he informed his supervisor of this incident. When asked to explain why he did not go to the police to report this attempt at XXXX XXXX, especially the death threats that he received, the appellant simply stated that XXXX is well connected. [23] The RAD finds it inconsistent, at the very least, that someone who was threatened from all sides to add names to a voter list would offer his telephone number, without being forced to do so, in order for XXXX and his gang to leave. Furthermore, it was not once, but twice, that the criminals threatened to kill him and he did not file a complaint with the authorities. Additionally, on two occasions, the appellant was confronted by individuals who wanted him to commit an illegal act, yet he still did not know who they were. [24] In his memorandum, the appellant states that due to the limited resources that the police have, citizens often do not file a complaint every time they are victims of a crime. If this statement were true, the appellant would not have filed a complaint with the authorities. It was not until one year after the first incidents in XXXX 2016 that the appellant went to the police station to report the kidnapping attempt. It should be noted that on XXXX XXXX, 2017, he was the victim of an armed robbery and that the individuals took his computer, telephone, and $USXXXX. There was no mention of this robbery that occurred in XXXX 2017 in the complaint report (which will be addressed in the following paragraph). [25] The appellant filed a complaint report with the Police nationale d'Haïti [Haitian national police], dated XXXX XXXX, 2017,4 reporting on the incidents mentioned above. The purpose of this complaint was to report the kidnapping attempt that occurred on XXXX XXXX, 2017. The end of the short text states: [translation] "I have been attacked twice." The panel is shocked to read that this is the second kidnapping attempt since nowhere in the written account he submitted or in his testimony does he mention two kidnapping attempts. When asked to explain his statement, the appellant answered that it was the officer who wrote the text. The RAD must reject this explanation because officers only write what the person concerned states. The police officer cannot know whether a particular incident occurred or whether there were one or more kidnapping attempts. In response, the appellant stated: [translation] "I explained everything to him, it's not well structured like it is here." The panel is of the opinion that if someone explains and describes incidents to a police officer, the officer notes their statements and nothing more. The RAD rejects the appellant's explanations and gives little weight to this document. [26] The second matter in the memorandum is that the RPD erred by concluding that the appellant's behaviour was not consistent with that of someone who fears for their life in Haiti. [27] Following the incidents on XXXX XXXXand XXXX XXXX 2016, there was a period of calm until XXXX XXXX XXXX 2017. After that, everything happened quickly. On XXXX XXXX XXXX 2017, there was a significant theft of his belongings. On XXXX XXXX, 2017, the kidnapping attempt occurred. The appellant then hid for a few days before leaving for the United States on XXXX XXXX XXXX 2017. At this point, his testimony became convoluted. He explained that people in his neighbourhood informed him that XXXX and his gang were responsible for all of the wrongdoings and actions committed against him. He is therefore aware of XXXX intentions. However, in his earlier testimony, he claimed that he does not know the people who stole his belongings. Furthermore, in his written account, where he explains the incident that occurred on XXXX XXXX, 2017, he simply states that two men on a motorcycle cut him off on the road and ordered him to get on. There was no reference to XXXX or his gang in the written account. [28] Due to all of this, the appellant feared for his life and decided to leave for the United States. On XXXX XXXX XXXX 2017, the appellant travelled to the United States with his passport and an American visa, which he had already had in his possession for a long time. The RAD also learned that he applied for a Canadian visa in 2014 but that his application was rejected due to a lack of evidence. [29] When asked to explain the goal of his trip to the United States, the appellant testified that he was waiting for the situation to calm down and that he wished to return to Haiti. He also stated that he left Haiti because he fears XXXX and his gang but wishes to return to his country once the situation has calmed down. He blows hot and cold. He allegedly received a text message that the criminals are still looking for him and that next time, they will kill him. Faced with this unequivocal threat, to say the least, he states that he cannot return to Haiti. Despite this statement, he did not apply for asylum in the United States because of President Trump's immigration policy. This behaviour completely undermines his subjective credibility. [30] Consequently, the RAD is of the opinion that the RPD did not err. [31] For the reasons expressed in this decision, the RAD finds that the RPD rendered the correct and appropriate decision. REMEDY [32] In light of all of the facts set out above and after reviewing the evidence as a whole, for these reasons, the RAD confirms the RPD's determination that XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [33] The appeal is dismissed. (signed) Michel Jobin Michel Jobin September 1, 2020 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Divisionrecord, Basis of Claim Form, XXXX XXXX written account. 2 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 3 M.C.I. v. Singh, 2016 FCA 96, para 51. 4 SPR-1, Appellant's record, Exhibit P-9: Complaint report, at p. 77/85. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / Nº de dossier de la SAR : MB9-08500 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français