MB9-13961

RAD File No. / No de dossier de la SAR : MB9-13961 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 11, 2020 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Ubald Lalanne 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] The appellant, XXXX XXXX, a Haitian citizen, alleges that his life is in danger in Haiti because in XXXX 2013 two members of a criminal group threatened him with a knife when they stole his motorcycle XXXX. Fearing for his safety, the appellant left Haiti on XXXX XXXX, 2013, to go to Brazil. He states that he stayed there until XXXX 2016, when he left for the United States. He arrived in Canada in XXXX 2017 and claimed refugee protection. [2] On March 15, 2019, a representative of the Minister of Immigration, Refugees and Citizenship Canada (the Minister) filed a notice of intervention. The Minister asked that the claimant be excluded since he either has permanent resident status in Brazil or failed to complete or finalize the formalities required to obtain permanent resident status, in which case his inaction undermines the credibility of his allegations and demonstrates a clear lack of subjective fear.1 The Minister argued that the claimant's name appears on the list of individuals who were given the opportunity by the Brazilian government to obtain permanent residence under a ministerial order signed on November 11, 2015.2 [3] The Refugee Protection Division (RPD) determined that the appellant was not a person referred to in the exclusion clause in Article 1E of the Convention because he did not know in a timely manner that his name was on the list attached to the ministerial order allowing 43,871 Haitians to obtain permanent residence. [4] With regard to his fear in Haiti, the RPD found that the appellant's credibility was undermined by omissions and contradictions in the evidence relating to central aspects of his refugee protection claim. The RPD was of the view that, even if the criminals are working with the government, the facts in this case do not give rise to the application of section 96 of the Immigration and Refugee Protection Act (IRPA). [5] The appellant is contesting this decision and submits that the RPD erred in concluding that section 96 of the IRPA does not apply and in the assessment of his credibility. [6] After conducting an independent assessment of the evidence, the Refugee Appeal Division (RAD) confirms the RPD's determination that the appellant, XXXX XXXX, is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the IRPA. [7] The appeal is dismissed. FACTUAL BACKGROUND [8] In the initial written account attached to the Basis of Claim Form (BOC Form), the appellant alleges that he XXXX XXXX XXXX XXXX in the city of Gonaives. On XXXX XXXX, 2013, two XXXX made death threats against him at knifepoint when he refused to give them the keys to his motorcycle. He states that these criminals also drove motorcycle XXXX and were envious that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXAccording to the appellant, he went to the authorities for help but the police refused on the pretext that they had no gas and no time for this type of case. The appellant alleges that he received death threats on the telephone because he had contacted the police despite the criminals' warning. [9] The appellant states that on XXXX XXXX, 2013, he sought refuge in Ouanaminthe or Wanament, as it appears in the BOC Form, but that the threats persisted and so he had his telephone line cut. [10] The appellant left Haiti on XXXX XXXX, 2013. He arrived in Brazil on XXXX XXXX, 2013. [11] The appellant states that he left Brazil on XXXX XXXX, 2016, because of the racism against Haitians. He went to the United States, where he allegedly stayed for one year. He came to Canada in XXXX 2017 to claim refugee protection here. [12] On May 14, 2019, and May 24, 2019, the appellant submitted two sets of amendments to his BOC Form.3 He adds that the criminals who are threatening him work for the government and that they would not hesitate to attack him because they believe that people who have spent years abroad are wealthy. [13] He adds that he experienced problems in Brazil in XXXX 2016 and XXXX 2016. He alleges that his cousin was even shot during the attack in XXXX 2016 but that the Brazilian police do nothing to protect Haitians. Impugned decision [14] On June 3, 2019, the RPD rejected the refugee protection claim and concluded that the appellant is not excluded under section 98 of the IRPA. With regard to his fear in Haiti, the RPD found that the appellant was not a credible witness overall, for reasons that include the following: 1. He omitted from the initial written account that the criminals had looked for him on two occasions at his mother's home. 2. His statements concerning the reasons why the criminals want to come after him are contradictory. 3. His testimony and written statements are contradictory regarding the fact that he had to cut his telephone line because the telephone threats continued when he sought refuge in Wanament. Appellant's position [15] Essentially, he submits that the RPD erred in concluding that there is no nexus under section 96 of the IRPA and by not accepting his explanations that the contradictions and omissions in the initial BOC Form are errors made by his first lawyers. [16] The appellant also submits that the RPD erred by not accepting his explanations that the contradictions and omissions in the initial BOC Form [translation] "revolve around errors by his first lawyers" because he refused to file a complaint against them or have them appear as witnesses. SCOPE OF THE APPEAL [17] Except in cases where the credibility of oral evidence is at issue and the RPD has a meaningful advantage, the RAD must conduct an independent assessment of the evidence and determine whether the RPD's decision is correct.4 I will indicate in my analysis whether I must show deference to the RPD. MERITS OF THE APPEAL Exclusion 1E [18] Since the RPD's findings concerning exclusion 1E are not contested by either the appellant or the Minister, the RAD will determine * whether the RPD erred in concluding that the facts do not give rise to an analysis of the refugee protection claim under section 96 of the IRPA; and * whether the RPD erred in assessing the appellant's credibility. The facts do not necessitate an analysis under section 96 of the Immigration and Refugee Protection Act [19] The appellant submits that the RPD erred by not analyzing his claim under section 96 of the IRPA because a political opinion could be imputed to him based on the fact that the criminals work for the government. According to him, the criminals were quite simply government agents, and the persecution is clearly due to the fact that he was not on the government's side.5 [20] Based on the evidence I have before me, I cannot agree with the appellant. To start, I am surprised that this important information was not written in the initial BOC Form. [21] The alleged facts, if the panel accepts them as true, suggest that the appellant was a victim of the crime that exists in Haiti. According to the information in the initial written account, individuals with ties to organized crime took his motorcycle XXXX from him on XXXX XXXX, 2013, because they were envious that XXXX XXXX XXXX XXXX XXXX XXXX. At the hearing, when he was questioned about why the criminals accosted him, the appellant answered, [translation] "they choose new motorcycles."6 [22] The amendment made in May 2019 adding that the criminals work with the government is not in itself sufficient to warrant an analysis under section 96 of the IRPA. On top of this late statement is the appellant's vague testimony and his inability to name the group the criminals supposedly belong to, even though he claims to have known two of them for a long time.7 Furthermore, even if some political figures in Haiti are corrupt, the evidence does not demonstrate that government officials are behind the alleged acts or that a political opinion was or could be imputed to him by the criminals. The RPD did not err in its analysis of the appellant's credibility [23] The credibility assessment is correct for the following reasons. [24] The omissions and inconsistencies noted by the RPD relate to incidents that are central to his refugee protection claim. First, nowhere in the initial written account did the appellant mention that, following the theft of his motorcycle XXXX, individuals went to his home on two occasions looking for him. This omission is surprising given that, according to his testimony at the hearing, these visits were the reason he left the country.8 [25] In addition, his testimony and written statements are contradictory regarding the fact that the threats allegedly continued when he sought refuge in Wanament. In his BOC Form, he writes, [translation] "On XXXX XXXX, 2013, because I didn't feel safe, I moved to Wanament. However, the threats didn't stop. They told me they would find me and kill me. Faced with this situation, I had to cut my telephone line." However, at the hearing he testified that he had not received threats in Wanament.9 This contradiction is justified by the fact that [translation] "it's the person who writes the text that adds things."10 [26] The appellant submits that the RPD erred in rejecting his explanations that [translation] "revolve around errors by his previous lawyers." The RAD cannot accept this argument for the following reasons. [27] The information in the initial BOC Form indicates that the entire BOC Form and the attached documents were translated from French into Creole by an interpreter.11 By signing his initial BOC Form, the appellant confirmed that he understood the content and that it was correct. Later, through his third lawyer-the one who represented him at the hearing-the appellant submitted two sets of corrections and additions to the initial BOC Form. At the start of the hearing, the appellant stated that when he reviewed the BOC Form with his lawyer, who understands his language, he realized that there were errors and thus made the proposed amendments. However, the amendments do not refer at all to the criminals' visits after his motorcycle XXXX was allegedly stolen. Nor do they correct the paragraph in the initial written account that states he received death threats on the telephone while he was in hiding. [28] The member did not err when he considered that the refusal to utilize the mechanism provided for in the Practice Notice - Allegations Against Former Counsel12 had an impact on the credibility of his explanations. [29] Other inconsistencies in the evidence create doubt in my mind. The appellant stated that after the incident in XXXX 2013, he sought refuge in Wanament until he left the country in XXXX 2013. However, the information in form IMM-5669 indicates that he worked as a XXXX XXXX up until XXXX 2013 and that he lived at the same address in Gonaives from 2007 to XXXX 2013. Perception of wealth after living abroad for several years [30] The appellant states that, if he returns, he fears that the criminals will come after him because they believe people like him who have lived abroad are wealthy.13 [31] Based on the criteria set out in Prophète14 and the documentary evidence, the RPD concluded that in this case the appellant did not establish that he is likely to face a personalized risk different from that faced by other Haitians as a result of crime in the country. [32] The RPD's analysis is correct. In Haiti, it is not only the wealthy or those perceived to be wealthy who are targeted. The documentary evidence indicates that any individual, regardless of gender or social class, is at risk of being a victim of robbery or kidnapping in Haiti.15 "[While] a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence."16 [33] For these reasons, I am of the opinion that the appellant did not establish that there is a serious possibility of persecution or that he is likely to be subjected to one of the risks set out in section 97 of the IRPA if he were to return to Haiti. CONCLUSION [34] For these reasons, I confirm the RPD's determination that XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the IRPA. The appeal is dismissed. (signed) Maria de Andrade Me Maria De Andrade September 11, 2020 Date IRB translation Original language: French 1 Exhibit SPR-1, Refugee Protection Division (RPD) record, at p. 151. 2 Exhibit SPR-1, RPD record, at pp. 154-158. 3 Exhibit SPR-1, RPD record, Exhibit P-1 amendments dated May 14, 2019, Exhibit P-3 amendments dated May 23, 2019, at pp. 22-23. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Exhibit P 2, appellant's record, appellant's memorandum, at p. 7. 6 Recording of the RPD hearing on May 24, 2019, around 1:50:37. 7 Recording of the RPD hearing on May 24, 2019, around 1:30:59. 8 Recording of the RPD hearing on May 24, 2019, around 37:40. 9 Recording of the RPD hearing on May 24, 2019, around 1:56:43. 10 Recording of the RPD hearing on May 24, 2019, around 2:20. 11 Exhibit SPR-1, RPD record, at p. 25. 12 https://irb-cisr.gc.ca/en/legal-policy/procedures/Pages/allegations-former-counsel.aspx 13 Exhibit SPR-1, RPD record, Exhibit P-1 amendments dated May 14, 2019, at p. 22. 14 Prophète v. Canada (Minister of Citizenship and Immigration), 2008 FC 331. (Prophète) 15 National Documentation Package on Haiti, March 29, 2019, and the one dated September 1, 2020, Tab 7.1: The security situation, including crime and kidnappings; measures taken by the government and other stakeholders to fight crime (2014-June 2018), June 19, 2018. 16 Prophète, supra, endnote 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-13961 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français