MB9-29516

RAD File No. / No de dossier de la SAR : MB9-29516 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 November 9, 2020 Date de la décision Panel Isabelle Parizeau Tribunal Counsel for the person who is the subject of the appeal Claudette Menghile 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 a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The appellant states that he fears being killed in Haiti by criminals working for the regime in power because he refused to join their gang. [3] The RPD rejected the appellant's refugee protection claim on the ground that he is excluded under Article 1E of the Convention pursuant to section 98 of the Immigration and Refugee Protection Act. [4] The appellant submits that the RPD erred by not finding him credible with regard to the events in Haiti, by rejecting the documentary evidence corroborating them and by concluding that there is no prospective fear in this country. [5] The Minister of Immigration, Refugees and Citizenship did not intervene before the RPD. [6] The Refugee Appeal Division (RAD) is of the opinion that the determinative issues are credibility and prospective fear in Haiti in the context of exclusion under Article 1E of the Convention. [7] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [8] According to his written account, the appellant was threatened by a group of criminals, supporters of President Michel Martelly, who wanted him to join their gang, which he refused. He allegedly started to be persecuted. He states that he filed a complaint with the police on July 7, 2013. On August 22, 2013, the criminals allegedly entered his home in his absence and beat up his wife. He states that he told her that she should move to a different area with the children and left Haiti on XXXX XXXX XXXX 2013. The appellant reportedly lived in Brazil and then left for the United States. Because of the U.S. immigration policy, the appellant entered Canada in XXXX 2017 and claimed refugee protection here. ANALYSIS [9] The RAD conducted an independent analysis of all of the evidence, which included listening to the recording of the RPD hearing, and applied the correctness standard.1 [10] The RAD did not identify errors in the RPD's unchallenged findings that the appellant had been granted permanent residence in Brazil, had enjoyed rights and obligations substantially similar to the those of that country's citizens and had lost this residence because he had been absent from the country for more than two years at the time of the hearing. [11] Nor did the RAD identify errors in the RPD's unchallenged findings regarding the factors to be weighed according to the Federal Court in Zeng:2 Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada's international obligations, and any other relevant facts. [12] The RPD concluded that the appellant had left Brazil voluntarily and could not return there and that Canada's international obligations were met because the appellant did not face a risk in Haiti. CREDIBILITY OF FEAR IN HAITI [13] The appellant submits that if the RPD had correctly assessed his credibility and the documentary evidence produced, prospective fear would not be an issue. The RAD does not share this view and will outline the reasons why in the context of its analysis of prospective fear. [14] In his memorandum, the appellant claims to have little education and not to understand all the nuances. He criticizes the RPD for not having taken into account his personality, intelligence, culture and education level in assessing his credibility. [15] The RAD notes that the RPD does not allude to these aspects in its reasons. [16] That said, in analyzing the forms completed3 by the appellant in the context of his refugee protection claim in Canada, the RAD notes that he completed 12 years of schooling, that is, six years at primary school and six years at secondary school. It also states that he is able to communicate in four languages: Creole, French, English and Portuguese. In the RAD's opinion, the appellant's education level is not so low as to have affected his ability to consistently testify about the events he claims to have experienced. [17] The RAD also does not accept the appellant's argument that the RPD did not take into account his intelligence or his culture since the appellant does not specify what aspects of his testimony were influenced by them or the nature of this influence. Moreover, the RAD sees no error in this regard from its independent analysis. [18] The RPD found that the appellant was not credible. The RAD comes to the same conclusion for the reasons provided below. Date on which the appellant's problems are alleged to have begun [19] In his memorandum, the appellant acknowledges having stated at the hearing that his problems began in 2011. He claims to have made a silly mistake because he had it in his mind that the start of his problems coincided with President Martelly's coming into power. When he realized this during the hearing, he acknowledged it spontaneously. The appellant is of the view that the RPD gave this date error disproportionate weight and ought to have given him the benefit of the doubt. [20] The RPD pointed out that the appellant's response to one of its questions was that his problems had begun in 2011. The RPD questions that followed sought details about what had happened and referred to the year 2011. Eventually, the appellant indicated that his problems had actually begun in 2013. To explain the contradiction, the appellant stated that he had not understood the question. The RPD did not accept this explanation because it had instructed the appellant to ask for questions he did not understand to be rephrased. The RPD found that this contradiction undermined the appellant's credibility because it pertained to a central aspect of the refugee protection claim. [21] The RAD is of the same opinion as the RPD. [22] From listening to the recording of the hearing, the RAD notes that the RPD did ask the appellant on what date his problems began and he answered 2011.4 The appellant then stated5 in 2011 when Michel Martelly took power. He also explained6 having made a connection between the criminals and President Martelly because the latter had armed them with machetes and weapons to commit acts in the country. A few minutes later, the appellant stated7 that President Martelly took power in 2011 but that his actual persecution started in 2013. Asked to explain this contradiction, the appellant replied8 that he may have misunderstood. [23] The RAD is not satisfied with the appellant's explanation that he misunderstood. Aside from the RPD's first question as to the date on which his problems began, the subsequent questions or responses referred to the year 2011 and President Martelly's coming into power. [24] The date on which the appellant's problems began is one of the central aspects of his refugee protection claim, and the RAD would have expected him to testify about it spontaneously. [25] The RAD also does not accept the appellant's argument that the RPD ought to have given him the benefit of the doubt because, in its opinion, the circumstances set out by the Federal Court in Gebrewold9 are not present: As the Court noted in Noga v. Canada (Minister of Citizenship and Immigration), 2003 FCT 454 [Noga], the benefit of the doubt principle "applies in a limited number of circumstances". Benefit of the doubt should be given only "when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility", which assumes that the applicant's statements are "coherent and plausible" (Noga, at paragraphs 10 to 12). [Emphasis added] [26] Like the RPD, the RAD finds that the appellant's credibility is undermined. Criminals who allegedly came to the appellant's home [27] The appellant submits that the RPD mischaracterized his testimony regarding the two armed men who came to his home. The appellant did not know them, but they were part of the team of eight men who had attempted to recruit him to their political party. The appellant submits that he did not change his testimony. [28] The RPD pointed out that, in his Basis of Claim Form, the appellant states10 that he filed a complaint with the police on July 7, 2013, against the criminals without providing further details. At the hearing, he testified that he had been threatened with a gun by two criminals and had managed to escape and file a complaint with the police. First, he stated that he did not know them and did not have time to look at them because he was fleeing. He then stated that they were part of the criminals who had attempted to recruit him. The RPD drew a negative inference from the appellant's changing testimony. [29] The RAD notes that the appellant's argument in his memorandum is based on erroneous facts. From listening to the recording of the hearing, the RAD notes that the appellant did not mention11 that two criminals had come to his home. Rather, he stated that on July 7, 2013, two criminals stopped him on the street and he managed to escape and go to a police station. The appellant stated that he did not know the two criminals12 and that he did not have time to look at them because a weapon was pointed at him.13 He also reported that the criminals had not said anything.14 Nonetheless, the appellant stated that he thought the two criminals wanted to kill him because he had refused to join the gang.15 [30] The RPD called the appellant's testimony changing. The RAD, however, considers it to be inconsistent. That said, like the RPD, the RAD draws a negative inference as to the appellant's credibility and is of the view that he failed to establish that the two criminals were part of the men who demanded that he join their gang. National police report [31] According to the appellant, the RPD erred by not giving any weight to the national police report16 because it was not detailed enough to allow the police to investigate. He submits that this document corroborates the fact that he sought police protection on July 7, 2013, against two people who had threatened him with death. The appellant claims that it is not his role to explain why the document is not detailed; he cannot know the reasons for this, but the lack of details supports his claim that the police are incompetent. [32] The RPD gave no weight to the national police report. It noted that it contains no information that would enable the police to investigate the complaint, such as the location, the time of the incident, a description of the suspects and the reasons for the attack. Asked to explain why the report contains very little information, the appellant replied that this was a reflection of the incompetence of the police. The RPD rejected this explanation. It pointed out that the document includes a sentence indicating that the complainant is declaring the facts, but it is not followed by any text and there is no space to write anything there. [33] The RAD notes that the report contains only two pieces of information about what had happened. The words [translation] "two (2) individuals" are handwritten below the heading [translation] "Case/Against" and the words [translation] "Death threat" are handwritten below [translation] "Nature." It is correct, as the RPD pointed out, that the document contains the preprinted statement [translation] "We acknowledge that the person named has reported to the investigations department and has disclosed his/her identity and the facts to us" and that there is no space to write down the facts. Spaces are provided for the complainant's name, date of birth, place of birth, home address, NIF number, telephone number, nationality, occupation and signature. The RAD is of the opinion that it is inconsistent for the report not to have space where the facts can be written down and, like the RPD, questions its authenticity. [34] Even if the RAD did not doubt the report's authenticity, it would not give it weight in terms of corroborating that the two men who allegedly attacked the appellant were part of the group that had apparently threatened him if he did not join the gang since, as it mentioned previously, it does not consider the appellant's testimony to be consistent on this point. [35] The RAD considers the RPD's finding to be correct. Medical certificate [36] The appellant is of the opinion that the RPD also erred by not giving the medical certificate17 weight because it does not prescribe treatment. According to the appellant, this is not a logical conclusion. The appellant cites a Federal Court decision,18 according to which documentary evidence can be disregarded in certain cases when the refugee protection claimant is not credible and the authenticity of the evidence is unreliable. However, when it is not and seems to corroborate the claimant's story, it must be considered. The appellant claims that the RPD did not question the authenticity of the medical certificate and provided no valid reason for not giving it probative value. [37] The RPD recalled that the appellant had alleged that his wife had been attacked on August 22, 2013, by criminals who had attempted to recruit him to their gang. The RPD stated that they had allegedly beaten, tied up and raped her while the appellant was in Port-au-Prince. The RPD noted that the medical certificate prescribes no medication, with the exception of psychological counselling, despite mentioning excruciating pain. It pointed out that the appellant was unable to explain the reason for this omission. The RPD did not give the medical certificate any weight. [38] The RAD notes that, in his written account,19 the appellant actually reports that on August 22, 2013, the criminals vandalized his home and had [translation] "beaten" his wife "to the point that she had to be hospitalized." From listening to the recording of the hearing, the RAD notes20 that the appellant testified that the criminals had burst into his wife's home and [translation] "hit her on the head," and she was hospitalized. The medical certificate states the following: [Translation] She has XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXclinical and para-clinical examinations revealed XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Various use tests were performed. In conclusion, Ms. XXXX XXXX XXXX shows signs of recent physical violence, psychological reactions consistent with the assault she says she suffered. Her condition would require appropriate psychological counselling. [39] Unlike the RPD, the RAD does not draw a negative inference from the fact that the certificate does not indicate the medications prescribed. However, it does draw a negative inference from the description of the attack in the appellant's written account and during his testimony at the hearing regarding the nature of the injuries reported in the medical certificate. In his written account, the appellant reports an attack on his wife, who needed to be hospitalized, and, at the hearing, an attack to the head, whereas the medical certificate reports serious injuries to different parts of the body. [40] The RAD also does not give weight to the medical certificate in terms of establishing that the criminals who allegedly went to the appellant's home were the same as those who had allegedly threatened the appellant if he did not join their gang. [41] The RAD considers the RPD's finding regarding the appellant's lack of credibility correct. PROSPECTIVE FEAR IN HAITI [42] The appellant submits that, had the RPD believed him, it would have concluded that the passage of time, six years in this case, was not a determinative factor for rejecting his refugee protection claim. As the appellant emphasized at the hearing, the documentary evidence21 shows that Haiti is a country with a culture of revenge and extreme violence. Few resources are needed to find someone in this small country because of informal networks and word of mouth, even after a ten-year absence. The appellant submits that the RPD erred in stating that the lack of reprisals against his family shows that the agents of persecution are no longer interested in him. According to the appellant, first, his wife was brutally beaten and raped and has had it with the agents of persecution, and, second, he is the one being targeted, not his family. [43] The RPD referred to the appellant's claim that the criminals are still looking for him and could find him anywhere in Haiti. He testified that his wife and children had moved to Saint-Michel de l'Atalaye after the attack on XXXX XXXX XXXX 2013. They have had no problems there since 2013, and his children have apparently gone to school the entire time. Asked by the RPD to explain why they have had no problems when this place is 60 km from Gonaïves, where the appellant and his family used to live, the appellant replied that he had advised his wife not to return to Gonaïves. [44] The RPD cited documentary evidence22 stating that acts of revenge can target family. It also pointed out that the appellant alleges that his wife was a target in 2013. According to this documentary evidence, the severity and likelihood of an act of revenge diminishes with the passage of time in five or ten years. [45] In the RPD's opinion, if it were to accept that the events occurred, which it does not, in the absence of any allegation that the appellant's family has been targeted over the past six years and in the absence of specific details about the agents of persecution, the appellant failed to establish that they would still be motivated to find him today. [46] The RAD is of the same opinion as the RPD. [47] In his memorandum, the appellant submits that the fact that his wife was attacked shows that his family was subject to reprisals. This attack, which the RAD does not consider to be corroborated by the medical certificate produced by the appellant, allegedly occurred close to six years ago. Since then, as the appellant testified,23 his wife has not been bothered and has been living with the parents and the children have been attending school. In his memorandum, the appellant submits that he is the one who was targeted. If that were the case, it is inconsistent for the agents of persecution to have gone after his wife six years ago. [48] From listening to the recording of the hearing, the RAD notes that the appellant testified24 that the criminals were still watching his wife for those six years. Asked to explain why they had not found her if they were still watching her, the appellant replied that, as the RPD pointed out, it was because she had left Gonaïves and he had recommended that she not return there. The appellant specified25 that his wife was living with family in Saint-Michel de l'Atalaye, which is very far from Gonaïves, a four-hour drive. According to the documentary evidence,26 Saint-Michel de l'Atalaye and Gonaïves are part of the Artibonite region and are not very far from each other. The RPD indicated that the distance between the two is 60 km. According to the map scale, the RAD is of the view that it is less than 100 km. [49] The RAD also notes that the appellant stated,27 as he did in his memorandum, that criminals have networks everywhere and communicate with each other and that it is easy to find someone. [50] The RAD considers it inconsistent that criminals who allegedly attacked the appellant's wife because of his actions would then not have bothered her for six years while she lived in the same region where the attack took place, considering that, according to the appellant, Haiti is a small country where anyone can be tracked down. [51] The RAD rejects the appellant's argument that he is allegedly the target, not his family, since he alleges that his wife was attacked on August 22, 2013. [52] In the RAD's opinion, the evidence fails to establish that the agents of persecution would be looking for the appellant if he were to return to Haiti and does not demonstrate a prospective fear. The RAD is of the view that the RPD's finding in this regard is correct. [53] The RAD considers the RPD's finding that the appellant does not face a serious possibility of persecution in Haiti or a risk of harm, on a balance of probabilities, to be correct. [54] The RAD is of the opinion that the RPD's assessment of the factors in Zeng and its determination that the appellant should be excluded under Article 1E of the Convention are correct. [55] The RAD concludes that the RPD's decision is correct. CONCLUSION [56] The RAD dismisses the appeal and confirms the RPD's determination that the appellant is excluded under Article 1E of the Convention. (signed) Isabelle Parizeau Isabelle Parizeau November 9, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118, para. 28. 3 SPR-1, Refugee Protection Division (RPD) record, IMM 0008 Generic Application Form, p. 33, IMM 5669 Schedule A, p. 49. 4 Audio recording of the RPD hearing of November 5, 2019, see approximately 0:46:12 to 0:46:20. 5 Ibid., see approximately 0:52:36 to 0:52:49. 6 Ibid., see approximately 0:53:34 to 0:54:56. 7 Ibid., see approximately 0:59:33 to 1:00:01. 8 Ibid., see approximately 1:01:48 to 1:03:56. 9 Canada (Public Safety and Emergency Preparedness) v. Gebrewold, 2018 FC 374, para. 28. 10 SPR-1, RPD record, written account, p. 27. 11 Audio recording of the RPD hearing of November 5, 2019, see approximately 1:12:25 to 1:17:12. 12 Ibid., see approximately 1:06:45 to 1:08:07. 13 Ibid., see approximately 1:17:13 to 1:19:20. 14 Ibid., see approximately 1:17:45 to 1:17:50. 15 Ibid., see approximately 1:18:25 to 1:18:45. 16 SPR-1, RPD record, P-2, report, p. 61. 17 Ibid., P-3, medical certificate, p. 62. 18 Kaur v. Canada (Minister of Citizenship and Immigration), 2005 FC 1710. 19 SPR-1, RPD record, written account, p. 27, lines 14 to 17. 20 Audio recording of the RPD hearing of November 5, 2019, see approximately 1:32:19 to 1:33:54. 21 SPR-1, National Documentation Package (NDP) on Haiti, October 20, 2017, Tab 7.3: Haiti: Revenge committed by gangs or by other organized crime structures; capacity of gangs or other organized crime structures to trace their targets, including if the targets return to Haiti after a long absence (2014-May 2015). June 18, 2015. Immigration and Refugee Board of Canada. HTI105162.FE. This Response to Information Request is at Tab 7.6 of the NDP on Haiti dated September 30, 2019, and the one dated September 1, 2020: 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. Immigration and Refugee Board of Canada. HTI106117.FE. 22 Ibid., Tab 7.6 previously cited. 23 Audio recording of the RPD hearing of November 5, 2019, see approximately 1:38:40 to 1:42:40. 24 Ibid., see approximately 1:49:39 to 1:51:50. 25 Ibid., see approximately 1:37:24 to 1:38:40. 26 SPR-1, NDP on Haiti, September 30, 2019, and September 1, 2020, Tab 1.1: Haiti. United Nations. Geospatial Information Section. February 2016. 27 Audio recording of the RPD hearing of November 5, 2019, see approximately 1:48:50 to 1:49:40 and 1:51:50 to 1:52:47. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-29516 RAD.25.02 (January 2020) Disponible en français 12 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