MB9-06140

RAD File No. / No de dossier de la SAR : MB9-06140 MB9-06141 / MB9-06142 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision December 18, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the persons who are the subject of the appeal Me Oscar Fernando Rodas Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellants, XXXX XXXX and XXXX XXXX are citizens of Haiti. Their minor daughter XXXX XXXX XXXX is a citizen of Brazil. They are appealing against the decision of the Refugee Protection Division (RPD), dated March 6, 2019, rejecting their claims for refugee protection on grounds that the determinative issue is credibility. [2] The female appellant was appointed the designated representative of her minor daughter, who is basing her claim for refugee protection on that of her parents. [3] The appellants have not submitted new evidence or requested an oral hearing. They are contesting the RPD's decision and requesting that the Refugee Appeal Division (RAD) set aside the decision and refer the matter to the RPD for re-determination by a differently constituted panel. [4] They submit that 1) the RPD erred in the assessment of their credibility; 2) it failed to consider all of the evidence; 3) it should not have considered the examination of the female appellant when she stated that she was upset. [5] Having listened to the hearing recording and independently assessed the evidence, I find that the RPD rendered the correct decision. The appellants did not conclusively establish the events central to their claims for refugee protection. FACTUAL BACKGROUND [6] In the Basis of Claim Form (BOC Form), they allege the following events: * In XXXX 2009, they opened a business in XXXX. Following the XXXX 2010 earthquake in Haiti, they went to live in the Dominican Republic; * In XXXX 2011, they returned to Haiti and reopened their business; * On XXXX XXXX, 2012, criminals belonging to the XXXX XXXX XXXX gang from XXXX robbed their shop and threatened to kill them if they alerted the police. The appellants stated that they left Haiti again to take refuge in the Dominican Republic, but that the Dominicans disliked Haitians. * On XXXX XXXX XXXX 2013, the appellant left to try his luck in Brazil, leaving behind his wife, who went to join him on XXXX XXXX, 2014. In Brazil, the female appellant gave birth to the minor child (minor appellant) in 2015. * Around late XXXX 2016, they left Brazil because their safety was at risk. They arrived in the United States in XXXX 2016. * They claimed refugee protection in Canada in September 2017. [7] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD arguing that the adult appellant should be excluded under section 98 of the Immigration and Refugee Protection Act (IRPA) because their names and passport numbers appeared on the list appended to the November 2015 Ministerial Order. [8] As for the minor child, the Minister argues that her claim for refugee protection is based on that of her parents, and that no evidence has been submitted that she has a well-founded fear of persecution or that she may be at risk of harm in Brazil. Impugned decision [9] The RPD analyzed the adult appellants alleged fear regarding Haiti because it deemed that even if their names and passport numbers appeared on this list appended to the November 2015 Ministerial Order, the evidence was insufficient to conclude that they fall under the exclusion clause in Article 1E. [10] The RPD found that the appellants' credibility was undermined by significant contradictions and omissions in the forms submitted in support of the claims for refugee protection. According to the RPD, they did not credibly establish that the alleged facts occurred. Arguments submitted on appeal [11] On appeal, it is argued that the RPD's conclusions are incorrect and that it should not have pursued the examination of the female appellant after she stated that she was upset, because it was obvious that her answers were flawed. Issues [12] Neither the appellants nor the Minister challenged the RPD conclusions in regard to the 1E exclusion. The appellants also did not challenge the RPD conclusions with respect to their minor child. Therefore, the issues in this appeal are the following: * Did the RPD err in pursuing the examination of the female appellant? * Did the RPD err in assessing the appellants' credibility and in finding that they did not establish that they would be subjected personally to a risk if they were to return to Haiti? ROLE OF THE REFUGEE APPEAL DIVISION [13] The RAD must conduct an independent assessment of the evidence. Except in cases where the credibility of oral evidence is at issue and the RPD has a meaningful advantage, the RAD must determine whether the RPD decision is correct.1 If I owe deference to the RPD because it has a meaningful advantage, I will indicate that in my analysis. ANALYSIS [14] The RPD did not err in pursuing the examination after the female appellant had stated that she was upset. Here is why. At the outset of the hearing, the female appellant failed to answer simple questions correctly. For instance, she answered that one of her sons was born in 1979 when she herself was born in 1977. Next, she stated that she and the male appellant have been together since 1999, whereas in the IMM-0008 form they indicate that they have been common-law partners since 2013. When asked to explain, she stated that she was upset. [15] On appeal, it is argued that the panel should have stopped the examination. [16] First of all, if the counsel was under the impression that the female appellant was not able to proceed, he should have mentioned it to the panel. Having listened to the hearing recording, I have no reason to conclude that the female appellant was unable to testify. Other than the birth dates of her children, the rest of her testimony did not pose any problems. She was able to provide the correct dates for her departures from Haiti and from Brazil. Omission of children's names and dates of birth on the Basis of Claim Form [17] The RPD drew a negative inference with respect to the appellants' credibility because they did not provide the names of their respective children on the BOC Form. The female appellant stated that she had three in Haiti, from another relationship. The appellant has a daughter in Haiti who was not reported on the BOC Form. When asked to explain these omissions, they stated that they had told their counsel. [18] I do not agree with the negative inference drawn by the RPD with regard to the omission of their children's names on the BOC Form, because the appellants did not hide the fact that they had children in Haiti. That information also appears in the other forms completed during the refugee protection claim process. Moreover, when asked by the panel, they spontaneously gave the names of their children, even those living in Haiti. [19] The female appellant has a son named Angelo from another relationship. The panel's remarks on more than one occasion that the appellant is not her son Angelo's father seemed tactless to me. I understand that the RPD was attempting to check the credibility of the appellants' allegation that they had been together since 1999; however, having a child from another relationship does not preclude the possibility that their statements that they had been together since 1999 were accurate. [20] Despite my disagreement with the RPD's conclusion, there is in my view no need to set aside the decision. [21] I agree with the RPD that the appellants did not credibly establish their claims that they would be subjected personally to a risk in Haiti. Here is why. [22] First of all, the alleged facts do not give rise to a review under section 96 of the IRPA. The appellants allege that they were the victims of a criminal gang, and their allegations do not suggest that it was on one of the five Convention grounds. The appellants did not establish that they were shop owners [23] The appellants' story is based on the fact that their shop in XXXX, a commune close to Cap-Haïtien, was robbed on XXXX XXXX, 2012, by criminals belonging to the XXXX XXXX XXXX gang in XXXX. [24] According to the statements made in the BOC Form, they opened a shop in 2009 in which they sold products XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Following the January 2010 earthquake in Haiti, they took refuge in the Dominican Republic. They reportedly returned to Haiti in XXXX 2011. When they returned, they reopened their business until the alleged robbery. [25] However, the RPD noted from the IMM-5669 forms that the appellants claim that they worked as XXXX XXXX XXXX in XXXX, from XXXX 2007 to XXXX 2014 for the female appellant, and from XXXX 2007 to XXXX 2013 for the appellant. According to the RPD, the appellants were unable to provide justification to explain this discrepancy. [26] On appeal it is argued that this finding is erroneous, without further explanation. [27] Respectfully, I cannot conclude that the RPD erred. The appellants testified that the town of XXXX is more than XXXX hours away from the commune of XXXX.2 The discrepancy is significant and central to the appellants' story. In addition, this discrepancy was not considered in isolation. Places of residence [28] The appellants claimed to have resided in the Dominican Republic following the January 2010 earthquake in Haiti. They reportedly returned to Haiti in XXXX 2011. [29] The RPD noted at question 12 of the IMM-5669 forms that the appellants do not declare that they lived in the Dominican Republic. When asked to comment, the appellant's response was not helpful in explaining this inconsistency. [30] On appeal, it is argued that this conclusion is erroneous, without further explanation. [31] With respect for the appellants, I cannot conclude that the RPD erred. In the IMM-5669 forms, nowhere is it indicated that they lived in the Dominican Republic or that they lived in XXXX. [32] The case law has established on various occasions that a decision-maker may compare the different statements made by a refugee protection claimant and draw a negative inference when the explanations are insufficient to justify the contradictions. [33] In listening to the hearing recording, I noted that the female appellant stated that she and her husband worked at the same location in XXXX.3 The job end dates indicated in the IMM-5669 forms correspond to the dates they left Haiti to travel to Brazil.4 They do not indicate the address in XXXX or that they worked in XXXX in the IMM-5669 forms. [34] The appellant's statements about his departure to Brazil are ambiguous. In the BOC Form, he states that he left his wife behind in the Dominican Republic when he left for Brazil. Again, I note that the IMM-5669 forms do not mention that the female appellant stayed in the Dominican Republic. [35] There is more. Omission in the BOC Form of another incident with the criminals [36] At the hearing, the female appellant stated that on XXXX XXXX, 2012, at around XXXX a.m., criminals robbed their shop. During the robbery, she was in a back room with her husband. It cannot be concluded from the statements at the hearing that the appellants had been seen by the criminals at the time of this incident. [37] The female appellant also stated that the criminals went to their shop another time, on XXXX XXXX. The RPD pointed out that she made no mention of a second incident in the written account. When asked to explain the omission, she stated that the incident took place in 2009. [38] Her husband intervened to state that his wife was sleeping when the incident occurred and that she did not remember the date. [39] The arguments submitted on appeal do not make it clear to me why this conclusion is erroneous. Furthermore, I noted in listening to the hearing recording that counsel stated that there was only one incident. [40] The inconsistencies are numerous and central to their claims for refugee protection. I cannot conclude that there is an error. Regarding the minor child of Brazilian citizenship [41] The RPD did not draw a specific conclusion regarding the female appellant's fear with respect to her country of citizenship. It only stated that the minor appellant was basing her claim for refugee protection on that of her parents, and it rejected that claim. [42] The appellants did not present arguments against the conclusion. [43] For my part, I have no evidence that there is a serious possibility of persecution or that the minor appellant is at risk in Brazil. [44] The female appellant stated in the BOC Form that she fears the young child will be separated from her. I understand from this statement that due to her young age, her mother fears she will be separated from her if she has to return to Brazil. [45] It should be pointed out that children born to Haitian parents also have Haitian citizenship.5 I do not have evidence that the minor child may be separated from her parents in the foreseeable future. In short, I am of the opinion that it is highly unlikely that the minor child could be separated from her parents. CONCLUSION [46] For these reasons, the RAD dismisses the appeal and confirms the determination of the RPD that the appellants, XXXX XXXX, XXXX XXXX and XXXX XXXX XXXX, are neither Convention refugees nor persons in need of protection under paragraph 111(1)(a) of the IRPA. Maria De Andrade Me Maria De Andrade December 18, 2019 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Hearing CD, 1:54:55. 3 Hearing CD, 1:52:04. 4 RPD Record, pages 74 and 75. 5 National Documentation Package on Haiti, July 20, 2018, Tab 3.1: Dual citizenship, including legislation; requirements and procedures for former Haitian citizens to re-acquire citizenship (2012-January 2013), February 8, 2013, and Tab 3.6: Haiti's Constitution of 1987 with amendments through 2012: Title II: Haitian Nationality. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-06140 MB9-06141 / MB9-06142 RAD.25.02 (April 4, 2019) Disponible en français 8 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 (April 4, 2019) Disponible en français