MB8-11862

RAD File No. / No de dossier de la SAR : MB8-11862 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 October 22, 2019 Date de la décision Panel Marie-Lyne Thibault Tribunal Counsel for the person who is the subject of the appeal Me Marie-José Blain 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] XXXX XXXX, the appellant, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] He maintains that the RPD erred in its assessment of his credibility by failing to consider the documentary evidence demonstrating the lack of state protection. [3] He is asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD, to allow his appeal and to grant him the status of Convention refugee. [4] After carrying out an independent assessment of the evidence, which included listening to the recording of the hearing, for the reasons stated below, the RAD determines that the RPD's determination is correct and that the appellant is neither a "Convention refugee" under section 96 of the Immigration and Refugee Protection Act (IRPA) nor a "person in need of protection" under section 97 of the IRPA. [5] The appeal is dismissed. APPELLANT'S PRELIMINARY MOTION [6] In his memorandum, the appellant submits that in order to form its opinion on his credibility, the RAD should consider all of the testimony he gave at the hearing before the RPD or summon him for an oral hearing. [7] Considering that the appellant is not submitting new evidence under subsections 110(3) and 110(4) of the IRPA, the RAD does not have jurisdiction to hold an oral hearing, in accordance with subsection 110(6) of the IRPA. [8] However, as previously mentioned, the RAD listened to the recording of the hearing held by the RPD. BACKGROUND [9] In his Basis of Claim Form1 (BOC Form), the appellant alleges that he fears a threat to his life from people hired by the Martelly government because of his participation in a student protest against the Martelly government in 2013. [10] He alleges that, two days after his participation in the protest, people hired by Martelly came to his neighbourhood and threatened his neighbours. The appellant learned from one of his neighbours that those people had shown photographs of him at the protest. They wanted to know his name and where he lived. [11] After hiding at a friend's home, a neighbour informed his mother that she had heard the leader of the group tell his men to shoot him point-blank. [12] The appellant sought refuge in Delmas. [13] A few days later, his older brother informed him that two protesters had been killed by people hired by Martelly. [14] On XXXX XXXX, 2013, the appellant left Haiti. ROLE OF THE REFUGEE APPEAL DIVISION [15] The RAD reviews RPD decisions on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the credibility of the oral evidence it hears, which, in particular cases, may attract deference. In this case, the RAD applied the correctness standard. ANALYSIS [16] The determinative issues in this case are the appellant's credibility and the risk he would face if he returned to Haiti. [17] The RPD concluded that the appellant did not establish that his participation in a student protest against the Martelly government in Haiti in August 2013 would subject him to a risk if he returned to Haiti. [18] The appellant maintains that the RPD erred in failing to assess his credibility with regard to the testimony he gave at the hearing and by ignoring some significant elements of his particular situation. [19] The RAD is of the opinion that the RPD did not err in rejecting the refugee protection claim on the basis that the appellant failed to discharge his burden of establishing the existence of a risk if he returned to Haiti. Credibility assessment [20] The appellant maintains that the RPD erred in carrying out a brief assessment of his credibility, when credibility is the very basis of any protection claim in Canada, and that it must be assessed by the RPD. Basing himself on Maldonado,3 he submits that there is a presumption that some facts are true when the claimant has sworn that they are, unless there are valid reasons to doubt it. Identities of the agents of persecution [21] The appellant maintains that the RPD erred in concluding that he [translation] "absolutely did not know who had taken a photograph of him, or who might be looking for him, or if the people who took the photograph of him still had it." [22] He submits that the evidence on the record, namely, his written statements in his BOC Form4 and his testimony, shows that, on the contrary, he was wanted by people hired by Martelly and his government who went to his neighbourhood, threatened his neighbours, showed photographs of him at the protest and wanted to know his name and where he was living. [23] The RAD agrees with the appellant's argument. The RPD erred in failing to consider that the appellant had indicated that people hired by Martelly were looking for him. However, the identities of the agents of persecution are not a determinative factor in this case. Consequently, the RPD's error is not determinative. Omission and adjustment to the testimony [24] The RAD is of the opinion that the appellant's credibility was undermined by an adjustment to the testimony and an omission. Although the RPD did not raise this adjustment to the testimony or the omission in its decision, the appellant's credibility was a determinative issue for the RPD and was addressed in its decision.5 [25] At the hearing, the appellant was asked at least three times by the RPD to explain the reasons why he believes he would be targeted if he returned to Haiti.6 The RAD notes that the RPD rephrased its question to try to understand why the group of people who had looked for the appellant after the protest in August 2013 would still be looking for him five years later. [26] According to the appellant's responses, he fears that the same individuals who had looked for him in August 2013 and who identified him by questioning his neighbours, would harm him if they saw him,7 because the same government is still in power. It was only when later questioned by his counsel that the appellant testified that when he speaks to his mother and brothers in Haiti, they tell him that the group of people who had looked for him in August 2013 still occasionally came to the area where they live.8 [27] In the RAD's opinion, that constitutes an adjustment to the testimony. [28] When confronted by the RPD with regard to his failure to disclose this information when previously questioned about the content of his conversations with his family in Haiti, with whom he speaks every week, the appellant replied that he thought the RPD wanted to know in which circumstances he spoke to his mother. He then added that he thought the question concerned his living conditions.9 [29] The RAD is of the opinion that the appellant's explanations are not satisfactory. Considering that the appellant alleges that he fears that the same people who were looking for him in 2013 would harm him if he returned to Haiti, the RAD would expect him to have mentioned, at the first opportunity, that his agents of persecution are sometimes spotted in the area where his family lives. [30] In the absence of a satisfactory explanation, the RAD draws a negative inference from this omission and finds that the credibility of the appellant's allegations that his agents of persecution are sometimes seen in the area where his family lives is undermined. Nature of the risk [31] The RPD concluded that aside from [translation] "some consequences" that arose immediately after the protest in August 2013, there was no evidence to suggest that other protesters from the appellant's neighbourhood were in danger. [32] The appellant maintains that the RPD erred in failing to consider his allegations that two protesters had been killed by people hired by Martelly and that he feared the same fate. He maintains that this is not a simple consequence, but rather murders committed by people hired by Martelly. [33] In the RAD's opinion, although the RPD could have expressed itself differently by stating that two protesters had been killed following the protest in August 2013, rather than referring to [translation] "some consequences," the RAD does not see any errors in the RPD's conclusion, considering that the RPD did not question the nature of the risk, but rather the existence of a risk if the appellant returned to Haiti. Risk the appellant would be subjected to if he returned to Haiti [34] The appellant maintains that the RPD erred in failing to consider the documentary evidence10 that Haiti is a very small country where there is a culture of revenge and where it is easy to find someone with few means and some motivation. [35] The RAD is of the opinion that the RPD did not err in failing to consider the documentary evidence. Although the RPD did question the appellant about the possibility of his agents of persecution tracking him down, the RPD's decision shows that the refugee protection claim was rejected because there was no evidence that the appellant was still wanted in Haiti five years after the protest.11 Therefore, the RPD did not question the ability of the agents of persecution to track down the appellant, but rather their motivation to do so five years after the event. [36] The appellant also maintains that the RPD erred in failing to consider his particular situation, that it carried out a brief analysis of the record, and that it should have considered that the people hired by Martelly and his government may certainly still want to track him down if he returned to Haiti, and that it would be very easy for them to find out where he is. [37] The RAD is of the opinion that the RPD did not err in concluding that the appellant did not establish that he would be targeted if he returned to Haiti because of his participation in a student protest in August 2013. [38] The RPD did consider the appellant's particular situation. In its decision, the RPD considered that the appellant was simply a protester, not a political organizer or leader.12 The RPD also considered the fact that many of the appellant's family members still live in St-Marc or the surrounding area, and that when questioned as to whether someone had informed him that he was still wanted, the appellant did not provide any evidence to that effect.13 [39] The RAD carried out an independent analysis of the evidence on the record. [40] In his BOC Form,14 the appellant alleges that while he was hiding in Delmas, his older brother came to see him to tell him that the people hired by Martelly had killed two protesters. [41] Upon reading the appellant's BOC Form,15 nothing indicates that other protesters were subsequently targeted or that those who were looking for him continued to look for him after he left Haiti on XXXX XXXX XXXX 2013. [42] At the hearing, the appellant testified that he had participated in only one protest with over 1,000 protesters16 in August 2013. When asked by the RPD to explain why he would be in danger five years after participating when he was only one protester among more than a thousand, the appellant explained that he was one of the people holding posters and that he had been photographed.17 [43] In the opinion of the RAD, despite the question having been put to him several times during the hearing,18 the appellant was unable to explain why the people hired by Martelly would still be interested in him five years after the protest. Aside from his allegations that, in 2013, his brother informed him that two protesters had been killed, the appellant presented no evidence that other protesters had faced consequences following their involvement in the protest despite there being more than 1,000 protesters. [44] Furthermore, the appellant did not submit any evidence that the people who had been looking for him in August 2013 had subsequently continued to look for him. [45] The RAD accepts that, according to the documentary evidence,19 there is a culture of revenge in Haiti. However, the appellant did not demonstrate that the people who were looking for him in August 2013 still have the motivation to look for him today. Lack of state protection [46] The appellant maintains that the RPD failed to consider the documentary evidence confirming that the authorities in Haiti are unable to guarantee adequate protection, because the police does not have the resources needed to protect citizens. [47] However, state protection was not a determinative issue for the RPD and was not addressed in the RPD's decision. [48] Since the RAD concluded that the RPD's finding that the appellant did not demonstrate that the people who were looking for him in 2013 would still have the motivation to look for him today is correct, as stated above, and that this finding is determinative, the RPD did not therefore err in failing to consider the documentary evidence that addresses the Haitian authorities' ability to protect citizens. [49] Considering the above, the RAD concludes that the RPD's determination that the appellant is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" under section 97 of the IRPA is correct. CONCLUSION [50] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination that XXXX XXXXXXXX is neither a Convention refugee nor a person in need of protection. Marie-Lyne Thibault Marie-Lyne Thibault October 22, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, Basis of Claim Form (BOC Form). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.). 4 Supra, endnote 1, BOC Form. 5 Corvil v. Canada (Citizenship and Immigration), 2019 FC 300, at paragraphs 13 and 15; Antunano Martinez v. Canada (Citizenship and Immigration), 2019 FC 744; Marin v. Canada (Citizenship and Immigration), 2018 FC 243. 6 Recording of the hearing, from around 01:03:00 to 01:14:00. 7 Ibid. 8 Recording of the hearing, at around 01:14:45. 9 Recording of the hearing, at around 01:16:00. 10 Response to Information Request. HTI105162.FE. Haiti: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2014-May 2015). Research Directorate, Immigration and Refugee Board of Canada, Ottawa. June 18, 2015. 11 RPD record, Reasons for the decision appealed, para. 8. 12 Ibid. 13 Ibid. 14 RPD record, BOC Form, p. 20, lines 50-52. 15 Supra, endnote 1, BOC Form. 16 Recording of the hearing, at around 01:07:46. 17 Recording of the hearing, from around 01:08:48 to 01:10:45. 18 Recording of the hearing, from around 01:03:00 to 01:14:00, supra, endnote 5. 19 National Documentation Package for Haiti, September 30, 2019, Tab 7.6, HTI106117.FE. Haiti: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). July 3, 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-11862 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