MB8-18644

RAD File No. / N° de dossier de la SAR : MB8-18644 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 August 1, 2019 Date de la décision Panel Me Jolyane Lefebvre Tribunal Counsel for the person who is the subject of the appeal Me Aristide Koudiatou Mianata 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, is appealing against a decision by the Refugee Protection Division (RPD) rejecting his refugee protection claim. The appellant claims that the RPD erred when it found that he is not credible and that it did not sufficiently consider the evidence before it. [2] After a complete and independent analysis of the evidence filed, including the recording of the hearing, I am of the opinion that the RPD decision is correct. [3] The Refugee Appeal Division (RAD) confirms the RPD decision and dismisses the appeal. BACKGROUND [4] The appellant alleges that his problems started in 2011, while he was collaborating with Mirlande Manigat's political party. [5] On March 17, 2012, he allegedly attended a meeting during which he made statements that government representatives did not like. That night, he received an anonymous telephone call asking him to work for the PHTK. He allegedly refused and claims to have received death threats. He also claims to have received another telephone call the next day. [6] He claims to have been beaten by people in a police car on April 1, 2012, and to have received medical treatment at the hospital. [7] He claims that in 2013, criminals sent by the PHTK beat his mother and set her house on fire. [8] Fearing for his life, the appellant left his country on XXXX XXXX XXXX 2013, and moved to Brazil. He allegedly experienced racism and received death threats from his employer and moved to the United States after two years. [9] He arrived in Canada on XXXX XXXX XXXX 2017. SCOPE OF THE APPEAL [10] The RAD's role in an appeal against an RPD decision was defined by the Federal Court of Appeal in Huruglica. In order to review the RPD decision, I must independently determine whether the RPD analysis was correct for each of the alleged errors of fact, law or mixed fact and law. MERITS OF THE APPEAL Refugee Protection Division findings [11] The RPD concluded that the determinative issue in this refugee protection claim is the appellant's credibility. It noted the following contradictions and omissions: * In his Basis of Claim Form (BOC Form), the appellant claims that criminals from the PHTK beat his mother and set her house on fire. However, during the hearing, he claimed that his mother was not at her home when the fire occurred. * In his testimony, the appellant claimed that the government and its supporters beat his father in 2015 and persecuted him in 2017. According to the appellant, this happened because he told his father he was planning on returning to Haiti. He mentions neither of these events in his BOC Form. * The appellant claims that after the meeting on March 17, 2012, he was asked to work for the PHTK, yet this party did not exist at the time. [12] As for the fact that the appellant could be considered to have significant financial means, the RPD concluded that he had not proven that he would be personally targeted by a risk or a threat if he were to return to Haiti. [13] The RPD concluded that, as there is no evidence, the appellant does not fall under Article 1E of the Convention. Appellant's arguments [14] The appellant argues that the RPD erred in its assessment of his credibility by giving no weight to his testimony. He also submits that it has not taken the entirety of the evidence into consideration. [15] As for the conclusion regarding the perception of wealth, the appellant argues that the RPD was wrong in concluding that the risk he faces is generalized. ANALYSIS Exclusion pursuant to Article 1E [16] In June 2018, the RPD sent a notice to the Minister of Immigration, Refugees and Citizenship Canada (the Minister) concerning whether or not Article 1E of the Convention might apply to the appellant. However, the Minister did not intervene in the case. [17] The RPD concluded that, although the appellant testified that he had a Brazilian resident card, valid for five years, the evidence was insufficient to conclude that the appellant held permanent resident status in Brazil. It therefore concluded that the appellant is not excluded under Article 1E of the Convention. [18] The appellant submits no arguments in his memorandum. [19] I will therefore proceed with the inclusion analysis. Did the RPD err in assessing the appellant's credibility? Contradiction concerning his mother's presence during the fire [20] In his BOC Form, the appellant claims that in 2013, criminals working with the PHTK assaulted his mother and set her house on fire. However, in his testimony, the appellant noted that his mother was not at home at the time of the incident. When confronted with this contradiction, the appellant claimed his mother had been beaten at another time. [21] The RPD did not accept the appellant's answer, as it was [translation] "inconsistent with the narrative presented in the BOC Form."1 It also concluded that the excerpt from the minutes of the registry set out as evidence by the appellant contradicts his oral testimony, in which he claimed that his mother was absent at the time of the fire. This heavily undermines the credibility of the appellant, to the point where the RPD did not believe the fire actually happened. The RPD granted no probative value to this document. [22] The appellant argues that the RPD did not weigh the evidence, claiming that the RPD must [translation] "understand that the narrative was obviously translated from Creole into French and that the meaning of certain sentences can shift."2 [23] I do not believe that the RPD erred when it granted this document no probative value. Like the RPD, I note that in the excerpt from the minutes of the registry, the appellant's mother stated that at around 1 a.m., while she was asleep, she received a telephone call from her daughter-in-law informing her that her house was on fire. According to the document, she claimed that she then left the house and screamed, and that her neighbours put the fire out with water. I am of the opinion that because the appellant claimed his mother was not present at the time while the excerpt from the minutes of the registry indicates otherwise, his credibility is undermined. [24] I cannot accept the appellant's argument; the fact that he states it was due to a translation mistake in his memorandum but not when asked about the contradiction by RPD undermines his credibility. Omissions of the 2015 and 2017 events from the Basis of Claim Form [25] At the start of the oral hearing, when the RPD member asked the appellant if he wanted to add anything to his story, the appellant mentioned that his father was beaten up by the government and its supporters in 2015 and that he was persecuted again in 2017. However, these events are not mentioned in his BOC Form. [26] The appellant explained that he did not mention these events in his BOC Form since he was in Brazil at the time and had no evidence to submit when he was completing is BOC Form. He submitted new evidence corroborating these events on the day of the oral hearing. [27] The RPD concluded that it cannot accept the appellant's explanations since these events are closely related to the risk the appellant claims to be facing: [translation] "It is totally inconsistent that he would have completely omitted these events, which are both objectively and subjectively important, from his BOC Form."3 [28] The RPD did not accept the appellant's argument that he was waiting for evidence to mention these events either, as the appellant's testimony was [translation] "full of examples that are not corroborated by any document."4 It also concluded that the documents submitted as evidence at the hearing did not establish a link between the 2015 and 2017 events and the risks he claimed to face. The RPD therefore granted no probative value to these documents. [29] The RPD concluded that the appellant's credibility was strongly undermined. [30] The appellant admits that he did not mention these events in his BOC Form, but argues that he [translation] "made these statements before the start of the hearing, spontaneously, and as soon as the panel gave him the opportunity to."5 Regarding his claim to have been waiting for evidence before mentioning these events, he believes his argument [translation] "is reasonable, especially today, when the absence of evidence to support a refugee protection claim can be fatal."6 [31] The RPD did not err. According to the appellant, his father was persecuted when the appellant told him he wished to return to Haiti. He claimed that [translation] "the government and its supporters heard about it and sent threats. To demonstrate, they beat my father, so I could not come back. If I did, I would have risked my life."7 Even though I believe the appellant when he claims to have talked about these events before the RPD hearing, they are important and should have been included in his BOC Form since they are the reason he did not return to Haiti. The fact that the appellant omits these details from his BOC Form undermines his credibility. [32] The argument submitted in the appellant's memorandum is the same argument the appellant submitted to the RPD. I agree with the RPD's observation that elements of the appellant's testimony have not been supported by documents, namely that the appellant claims his mother was assaulted but did not submit evidence to support this. The appellant's argument does not explain why he omitted these events at first. He writes in his memorandum that "the absence of evidence to support a refugee protection claim can be fatal," but left parts of his testimony unsupported by evidence; this undermines his credibility. Contradictions surrounding the existence of the alleged agent of persecution [33] The appellant writes in his BOC Form that after the meeting on March 17, 2012, he was XXXX XXXX XXXX for the PHTK party. He claims that the party threatened his life when he refused. When confronted about the fact that the PHTK did not exist in March 2012, the appellant stated that this was why he always used the term [translation] "government party," explaining that this was also why he never mentioned the Repon Peyisan party, as this party was no longer in power. [34] The RPD concluded that this answer was unacceptable, as the appellant clearly mentions the PHTK party by name in his BOC Form, [translation] "explaining the acronym, translating it, and reiterating that the March 17, 2012, telephone call concerned the PHTK."8 The RPD concluded that although the appellant used the term "government party," he also used the PHTK acronym in his testimony and in his BOC Form and mentioned that the PHTK was in power when he received the call. [35] The RPD found that the appellant's credibility was heavily undermined. [36] The appellant submits that his testimony is reasonable and that there is a one- to two-month gap between the telephone call he received and the PHTK's creation. He also states that he was [translation] "contacted in anticipation of the party's creation."9 [37] I believe that the RPD's decision is correct. Listening to the recording of the oral hearing, I noted that while the appellant mentioned [translation] "the government's party" in his testimony, he also claimed the PHTK was the ruling party at the time of the telephone call.10 He also mentioned that the meeting he attended was organized by people affiliated with the PHTK, and, as noted by the RPD, uses the acronym PHTK several times in his BOC Form. [38] As for the argument in the appellant's memorandum, I understand that the difference is of only a few weeks and that the creation of a political party can take place over several weeks. However, I believe the appellant should have been able to make it clear to the panel that it was not yet a political party. He should also have been able to name both the governing party at the time of the telephone call and the organizer of the meeting he attended, as they are the root of his problems. His failure to do so undermines his credibility. [39] Moreover, I find that the appellant's credibility is also undermined by the fact that he eventually claimed to have been contacted in anticipation of the PHTK's creation, but did not say so when asked by the RDP member. The perception of wealth [40] At the time of the appellant's RPD hearing, his counsel mentioned that the appellant had lived overseas for many years and could be considered as having significant financial means. [41] The appellant did not mention this fear in his testimony or in his BOC Form. [42] After citing documentary evidence, the RPD concluded that the risk the appellant might face in Haiti is generalized and not personalized; it concluded that the appellant failed to prove that he would be personally targeted by a risk or a threat if he were to go back to Haiti. [43] The appellant submits that the risk he would be exposed to [translation] "is personalized for a certain group of people in Haiti-people who have been overseas."11 [44] I believe the RPD's decision is correct. The Federal Court states that "[t]he perception of wealth is insufficient to sustain the position that Haitian returnees constitute a social group."12 Furthermore, I believe that pursuant to section 97 of the IRPA, the appellant has not established that the risk he would face if he returned to Haiti would be a personalized risk, different from the generalized risk other citizens face. He also did not submit arguments concerning his personal situation. I therefore conclude that the RPD did not err. [45] All of this evidence lead me to conclude that the appellant did not prove that the RPD erred. CONCLUSION [46] For these reasons, the RAD confirms the RPD decision and determines that XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" under section 97 of the IRPA. [47] The appeal is dismissed. (Signed) Jolyane Lefebvre Me Jolyane Lefebvre August 1, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) decision, paragraph 24. 2 Appellant's Memorandum, paragraph 11. 3 RPD decision, paragraph 32. 4 RPD decision , paragraph 33. 5 Appellant's memorandum, paragraph 18. 6 Appellant's memorandum, paragraph 20. 7 Oral hearing recording, 11:06 and following. 8 RPD decision , paragraph 44. 9 Appellant's memorandum, paragraph 27. 10 Oral hearing recording, 1:27:22. 11 Appellant's memorandum, paragraph 33 12 Ligene Cius v. Canada (Minister of Citizenship and Immigration) 2008 FC 1 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB8-18644 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