MC0-08070

RAD File No. / No de dossier de la SAR : MC0-08070 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 May 28, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Richard Serour 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 INTRODUCTION [1] Mr. XXXX, you are a Haitian citizen and you have stated that you fear persecution in your country because you refused to support a political figure.1 [2] The Refugee Protection Division (RPD) rejected your claim for refugee protection after finding that you were not credible and that your behaviour was inconsistent with that of a person who fears persecution or a risk to their life.2 [3] On appeal, you have presented documents and submitted that the RPD erred.3 [4] After conducting my own analysis, I have concluded that the evidence presented on appeal is not admissible (I) and that there is no cause to hold an oral hearing (II). I have also concluded that the RPD did not err as you allege (III). [5] In light of these conclusions, your appeal is dismissed. I. EVIDENCE PRESENTED ON APPEAL [6] The Refugee Appeal Division Rules (RAD Rules) provide that the person who is the subject of the appeal must submit a memorandum that includes full and detailed submissions regarding how the documentary evidence they wish to cite on appeal meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to them.4 Subsection 110(4) creates an exception to the general rule [7] Subsection 110(3) of the IRPA provides that, in general, the Refugee Appeal Division (RAD) must proceed without an oral hearing, on the basis of the record of proceedings of the RPD. Subsection 110(4) creates an exception to this general rule. The existence of criteria governing the admissibility of evidence on appeal helps to preserve the integrity of the process by promoting finality with respect to the factual record at the first level of decision-making, with rare exceptions, and encouraging the narrowing of issues as matters move up the appellate ladder.5 [8] When analyzing the evidence presented on appeal, I must determine whether or not it is admissible under subsection 110(4) of the IRPA and the case law that has interpreted that provision. For this evidence to be deemed admissible, it must first fall under one of the three categories described in subsection 110(4), namely: (i) evidence that arose after the rejection of the refugee protection claim; (ii) that was not reasonably available; or (iii) that the person could not reasonably have been expected in the circumstances to have presented to the RPD. In addition, the admissibility criteria for such evidence include the ones set out in the Federal Court of Appeal's decision in Raza, such as the issue of whether it is credible, considering its source and the circumstances in which it came into existence. If not, the evidence need not be considered.6 The documents you presented on appeal [9] In your written statement, you submit that you presented new evidence, namely, a visa application for the United States, a letter and a photograph concerning a visit from your assailants.7 [10] In your memorandum, you state that in March 2016, you applied for a US visa for your wife and your daughter with the intention of applying for asylum once they entered the country, but in April 2016, the visa applications were denied. You also submit that this evidence meets the requirements of subsection 110(4) of the IRPA, because, although the visa application arose before the rejection of your refugee protection claim, you had not thought that it was relevant at that time. Following the RPD's decision, you considered it relevant, as the member referred to the fact that you did not apply for asylum in that country without considering that you were not prepared to abandon your family.8 [11] In your memorandum, you state that on XXXX XXXX, 2020, your assailants came to your wife and daughter's home, asked where you were and threatened to kill them if they did not find you. You submit that the letter and photograph you presented in this regard meet the requirements of subsection 110(4) because, although the event arose before the rejection of your claim, it took place the day after the hearing.9 These documents are not admissible [12] These documents do not meet the requirements of subsection 110(4). The reasons are as follows. [13] You admitted that the visa application existed before the RPD's rejection of your refugee protection claim but that you had not considered it relevant. Only after reading the RPD's decision did you consider that the said visa application was relevant for the purposes of your claim. However, evidence presented under subsection 110(4) of the IRPA cannot be intended to supplement deficient prior evidence or merely to counter a finding made by the RPD. [14] Your wife's letter and the photograph indicate that assailants came to where your wife and daughter live on XXXX XXXX, 2020. However, these events did not arise after the rejection of your refugee protection claim. Although your wife's letter is dated XXXX XXXX, 2020, you did not explain why this information was not available to you between February 8, 2020, and March 11, 2020, the date of the RPD's decision, for example, or why you did not present it to the RPD before it rendered its decision. Furthermore, considering the source of this letter and photograph and the circumstances in which they came into existence, I find that they lack the necessary credibility to be declared admissible on appeal.10 [15] In the circumstances, I consider that these documents do not meet the requirements of subsection 110(4) of the IRPA and are therefore not admissible on appeal. II. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [16] In your written statement11 and memorandum,12 you do not request an oral hearing before the RAD. [17] In any event, the onus rests with the RAD to determine whether or not the tests under subsection 110(6) have been met.13 One of the criteria set out in this subsection is that evidence presented on appeal has been found admissible. However, I found that the evidence you presented on appeal was not admissible. Consequently, it is not possible to hold an oral hearing.14 III. ANALYSIS OF THE APPEAL [18] The role of the RAD is not to conduct a de novo consideration of a claim for refugee protection but rather to determine whether the RPD erred as alleged.15 I conducted my own analysis of your record, primarily by listening to the recording of the hearing before the RPD16 and the documentary evidence. I have concluded that the correctness standard must be applied.17 A. The errors you allege the Refugee Protection Division made [19] Under the RAD Rules, the person who is the subject of the appeal must state: (i) the errors that are the grounds of the appeal; and (ii) where the errors are located in the RPD's decision or in the transcript or in any recording of the hearing.18 [20] In your memorandum, you submit that the RPD committed a number of errors: - It interrupted you during the examination, not with the aim of clarifying certain information, but rather to create confusion. - It placed too much emphasis on these minor elements, when interpreted within the situation as a whole, which have no bearing on the basis of your refugee protection claim. - It called into question your subjective fear, even though it had been objectively and clearly established. - It took into account the first visit to the United States, even though the first attack took place after that trip. - It failed to consider the nature of the omission and the point in time when the BOC Form was amended. - It failed to consider certain unusual characteristics that you experienced when filling out your BOC Form and at the time of the hearing. - It failed to consider the best interests of the child when interpreting your decisions and your actions.19 B. Refugee Protection Division decision [21] After summarizing your allegations,20 and after identifying inconsistencies during your testimony, behaviour that was inconsistent with your alleged fear and significant differences between your original written account and your amended written account, which were not reasonably explained, the RPD concluded that you failed to discharge your burden of establishing that, should you return to Haiti, you would be persecuted for your political opinion.21 [22] With respect to the inconsistencies during your testimony, the RPD noted that you stated that the first attack you suffered had taken place on XXXX XXXX, 2015, rather than on XXXX XXXX, 2015, as you wrote in your BOC Form. It also noted that, during your testimony, you failed to state that your assailants had threatened to pull off your fingers. Last, it noted that you testified that your assailants had threatened to rip your face off during the attack on XXXX XXXX, 2015, rather than during the attack on XXXX XXXX, 2017, as you wrote in your BOC Form. These inconsistencies led the RPD to draw a negative inference with respect to your credibility concerning the attack on XXXX XXXX, 2015.22 [23] On the topic of the behaviour that was inconsistent with your alleged fear, the RPD considered that you gave unreasonable explanations as to why you did not apply for asylum in the United States during your two visits to that country in XXXX 2015 and XXXX 2016. It also considered that continuing to stay in Jacmel and work in the same area was another behaviour that was inconsistent with your alleged fear.23 [24] The RPD concluded that the differences between your first written account and your second written account were significant and that your explanations for them were unacceptable.24 C. According to my own analysis, the Refugee Protection Division did not err as you allege [25] After conducting my own analysis of your record, I conclude that the RPD did not err as you allege. The reasons are as follows. The Refugee Protection Division's examination did not aim to create confusion [26] I carefully listened to the recording of the hearing held before the RPD. According to my own analysis, the member asked you all of the questions in an extremely courteous manner. Contrary to one of your arguments,25 the aim of the examination was never to create confusion by providing erroneous information, particularly with respect to the date of the first attack you allegedly suffered. [27] It was you who testified that in XXXX 2015 three men went to your place of work in XXXX XXXX to ask you to help Mr. XXXX and that, following your refusal, they began watching you, making malicious remarks to you at bus and moto-taxi stations and calling you on your telephone. The RPD asked you what happened next. You responded that when election day came on August 9, 2015, after the electoral offices had closed, you were about to return home when two armed men who had their faces covered asked you why you did not want to work for them, told you that if Mr. XXXX ended up losing the election you were going to pay for it, and then punched you very hard, with a firearm to your neck. When the RPD confronted you with the fact that your written account states that this event took place on XXXX XXXX, you then stated that the elections had been postponed and that the incident had taken place on XXXX XXXX.26 It is clear that after the RPD confronted you, you adjusted your testimony with respect to the date of the attack you allegedly suffered. The Refugee Protection Division considered the entirety of the evidence and did not rely on minor details [28] Your argument that the RPD placed too much emphasis on minor details is baseless. In its decision, the RPD rejected your refugee protection claim after considering the accumulation of credibility issues and behaviour that is inconsistent with a subjective fear of persecution.27 [29] When claimants swear to the truth of certain allegations, they are presumed to tell the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanation provided for those inconsistencies.28 The RPD may make adverse findings based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.29 [30] According to my own analysis of your record, the RPD did base each of the conclusions in its decision on your testimony, your own statements from your initial BOC Form and the subsequent amendments thereto. [31] With respect to the latter, according to my own analysis of your record, these amendments did not merely provide more details with respect to your statements in the first version of your BOC Form but actually constituted additions.30 As it was entitled to, the RPD asked you to explain why your first written account states that Mr. XXXX's supporters had remained calm after the election result in November 2015, while your second written account states that you had been threatened by them. You responded that you had spoken with your sister XXXX who is in the United States and who is aware of everything that happened to you. You added that when you wrote up your document, you had been so stressed that some information had escaped you and that you had written down everything that came to mind.31 When you signed the first version of your BOC Form, you declared that the information provided therein was complete, true and correct.32 The RPD considered that you gave unsatisfactory explanations for the amendments you made to the second version of your BOC Form. In my opinion, it did not err when it found that these amendments undermined your credibility.33 Your behaviour was inconsistent with that of a person who fears persecution [32] It is well established that remaining longer than necessary in a country where one fears persecution, voluntarily returning to that country or not seeking asylum at the first opportunity is behaviour that could demonstrate a lack of subjective fear,34 or that is inconsistent with that of someone who genuinely fears for their life.35 In short, negative credibility findings made under section 96 may affect the validity of a claim under section 97 of the IRPA, even though subjective fear is not part of the assessment for the latter section.36 [33] The RPD's conclusions concerning your stays in the United States, where you did not apply for asylum, and your continued activities in the Jacmel area are based on the testimony you gave at the hearing and are utterly persuasive. [34] I will look at one example. During the hearing, the RPD asked you why you had returned to Jacmel in XXXX 2016 when you had been in the United States and, according to your statements, had received several threats, including death threats, in Jacmel and had been attacked by supporters of Mr. XXXX there. You responded that that was where your family was, that you had left the Nord in 2011 and that you could not return there, as you do not know how to start your life over again there. You added that, when it comes to escaping from Mr. XXXX's threats, he works in a network and has groups in all of the country's departments. There, you could stay in Jacmel, because that is where you could live with your family.37 [35] With all due respect, your testimony clearly establishes that your behaviour was inconsistent with that of a person who has a subjective fear of persecution or who is facing a risk to his or her life. As a result, your argument that the RPD called your subjective fear into question, even though it had been objectively and clearly established, is simply baseless. CONCLUSION [36] For these reasons, I confirm the determination of the RPD, namely, that you failed to establish that you have a well-founded fear of persecution within the meaning of section 96 or that you would be subjected to a risk within the meaning of section 97 of the IRPA if you had to return to Haiti. [37] Your appeal is dismissed. (Signed) Alain Bissonnette Me Alain Bissonnette May 28, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Form (BOC Form) and the amendments thereto are reproduced at pages 14 to 33, and the documents you presented in evidence before the Refugee Protection Division (RPD) are reproduced at pages 91 to 101 of the scanned version of the RPD record. 2 RPD reasons and decision, March 11, 2020, pages 5 to 13 of the scanned version of the RPD record. 3 Your memorandum, September 18, 2020, pages 25 to 40 of the scanned version of your appeal record. 4 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, subparagraph 3(3)(g)(iii). 5 Canada (Minister of Citizenship and Immigration) v. Davoodabadi, No. IMM-1047-18, Norris, March 21, 2019; 2019 FC 350, paragraph 21, citing the Federal Court of Appeal decision in Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96. 6 Khan v. Canada (Minister of Citizenship and Immigration), No. IMM-4767-19, Gascon, March 28, 2020; 2020 FC 438, paragraphs 28 to 31, also citing the Federal Court of Appeal decision in Singh. 7 Your written statement, pages 14, 15 and 16 of the scanned version of your appeal record. These documents are reproduced at pages 18 to 22 of the scanned version of your appeal record. 8 Your memorandum, supra, endnote 3, page 36 of the scanned version of your appeal record. 9 Ibid., pages 37 and 38 of the scanned version of your appeal record. 10 Singh, supra, endnote 5, paragraphs 38, 43 and 44. 11 Your written statement, page 17 of the scanned version of your appeal record. 12 Your memorandum, supra, endnote 3, page 39 of the scanned version of your appeal record. 13 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 14 Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-566-18, Boswell, January 16, 2019; 2019 FC 54, paragraph 29. 15 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 16 Recording of the hearing held before the RPD on February 6, 2020, 00:01 to 01:48:23 (from one second to 1 hour, 48 minutes and 23 seconds). 17 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 18 RAD Rules, supra, endnote 4, subparagraph 3(3)(g)(ii). 19 Your memorandum, supra, endnote 3, Conclusion, page 34 of the scanned version of your appeal record. 20 RPD reasons and decision, supra, endnote 2, paragraphs 3 to 7. 21 Ibid., paragraph 10. 22 Ibid., paragraphs 11 to 14. 23 Ibid., paragraphs 15 to 20. 24 Ibid., paragraphs 21 to 26. 25 Your memorandum, supra, endnote 3, page 27 of the scanned version of your appeal record. 26 Recording of the hearing, supra, endnote 16, 24:30 to 33:00. 27 RPD reasons and decision, supra, endnote 2, paragraph 27. 28 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 29 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 30 McKenzie v. Canada (Minister of Citizenship and Immigration), No. IMM-4862-17, Elliott, May 1, 2019; 2019 FC 555, paragraph 34. 31 Recording of the hearing, supra, endnote 16, 55:30 to 01:00:00. 32 Your initial BOC Form, October 9, 2017, pages 21 to 34 of the scanned version of the RPD record. 33 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, paragraphs 25 to 29. 34 Rivera v. Canada (Minister of Citizenship and Immigration), No. IMM-5826-02, Beaudry, November 5, 2003; 2003 FC 1292, paragraphs 29 and 30. 35 El-Khatib v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-15, LeBlanc, April 27, 2016; 2016 FC 471, paragraph 12. 36 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, paragraph 18. 37 Recording of the hearing, supra, endnote 16, 01:03:00 to 01:04:30. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MC0-08070 RAD.25.02 (May 19, 2021) Disponible en français 3 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 (May 19, 2021) Disponible en français