MB9-17805

RAD File No. / No de dossier de la SAR : MB9-17805 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, QC Appel instruit / entendu à Date of Decision November 2, 2020 Date de la décision Panel Me Jolyane Lefebvre Tribunal Counsel for the person who is the subject of the appeal Rachid Zidi Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION OVERVIEW [1] The appellant, XXXX XXXX, is a citizen of Haiti and is claiming refugee protection in Canada. [2] According to his Basis of Claim Form (BOC Form), he alleges that he fears criminals from the Parti Haïtien Tet Kale (PHTK) [Haitian Tet Kale party]. The latter apparently threatened him and his family in XXXX 2012. He alleges that he left Brazil in XXXX 2012 to return to Haiti on XXXX XXXX, 2015. Upon his return to Haiti, the criminals reportedly showed up at his home, and they killed his sister. He returned to Brazil in XXXX 2015, left for the United States in XXXX 2016 and arrived in Canada in August 2017. [3] The Refugee Protection Division (RPD) rejected the appellant's refugee protection claim. It made several negative findings regarding his credibility and concluded that he did not establish, on a balance of probabilities, that he is threatened by anyone in Haiti. It also concluded that the exclusion under Article 1E of the Convention did not apply in his case. [4] The appellant challenges the RPD's decision. He submits that his testimony was consistent and that the contradictions and omissions noted by the RPD are based on minor elements. He adds that "the panel must do more than simply search ... for inconsistencies or for evidence that lacks credibility, thereby building a case against the claimant.1" [5] I conducted an independent analysis of the evidence, taking into consideration the Refugee Appeal Division (RAD) record and the RPD record, including the recording of the RPD hearing. DETERMINATION [6] I dismiss the appeal. The RPD correctly concluded that the appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS 1E exclusion in Brazil [7] The RPD sent a notice from the Minister of Immigration, Refugees and Citizenship Canada (the Minister) regarding the possibility that the appellant is a person described in Article 1E of the Convention. However, the Minister did not intervene in this case. [8] The RPD concluded that the exclusion set out in Article 1E of the Convention did not apply in the appellant's case, because he never had permanent residence in Brazil and would not have been able to acquire it. [9] The appellant does not challenge this conclusion and does not make any argument in his memorandum. [10] Thus, I will conduct an inclusion analysis. The Refugee Protection Division's findings regarding the appellant's credibility are not erroneous - Failure to indicate the identity of the agent of persecution and his family in the Basis of Claim Form [11] At his hearing, the appellant stated that he fears the PHTK criminals and particularly XXXX XXXX XXXX.2 When confronted with the fact that the XXXX name is not mentioned in his BOC Form, he replied that he did not mention it because he knew that he would have the opportunity to provide this information at his hearing. [12] In addition, when asked about whether these problems would disappear if XXXX XXXX did not exist, the appellant confirmed that his problems would continue because the XXXX's cousin and brother hold important positions. He then stated that he feared the whole XXXX family. [13] The RPD did not accept the appellant's explanations. It stated that the instructions in the BOC Form are very clear and that the appellant confirmed that his BOC Form was complete, correct and up to date at the beginning of the hearing. It concluded that by not mentioning XXXX XXXX XXXX and his family members in his BOC Form, he made two material omissions that undermined his credibility. [14] In his memorandum, the appellant submits that he indicates the source of his problems in his BOC Form, namely, the [translation] "rivalry between two clans: the PHTK against the XXXX XXXX group."3 He states that in this context, [translation] "names are not that important; they are minor details."4 [15] In my opinion, the RPD did not err. The identity of the agents of persecution is an element central to a refugee protection claim. Contrary to what the appellant submits, this is not a minor detail, but an important element that the panel can expect to find in the forms. In my view, this is a material omission and the appellant's explanations are not sufficient to justify it. This undermines his credibility. - Omission regarding his involvement in the XXXX XXXX group [16] In his written account, the appellant states that in XXXX 2012, he and his family were threatened and attacked multiple times by a group of armed men. However, at his hearing, he instead testified that his problems began in XXXX 2011. He added that he was a member of the XXXX XXXX group and that individuals he knew, including his cousin, were killed because of their involvement in the group. [17] The RPD concluded that those [translation] "additions constitute material omissions from his BOC Form and have only further undermined the claimant's credibility regarding his allegations."5 It added that his testimony casts doubt on all of his allegations. [18] The appellant submits that the RPD cites details omitted from his BOC Form, such as the murder of his cousin. He points out that this event is minor compared to the main story, which is a conflict between two political clans. [19] Although the appellant states that the story is based on a conflict between two political clans, I note that he does not directly challenge the RPD's conclusion. He does not submit any argument for the omission from his BOC Form. I am of the opinion that the RPD's conclusion was correct. The fact that the appellant does not state in his BOC Form that his problems are related to the fact that he was a member of the XXXX XXXX group undermines his credibility. In my view, this information should have been in his BOC Form, especially since the appellant states that the conflict between the two political parties is the basis of the story. - Contradictions surrounding the threats received in XXXX 2012 [20] In his BOC Form and its amended version, the appellant states that he and his family were victims of multiple threats and attacks. When asked who was threatened among his family members, the appellant replied that no one else was threatened in XXXX 2012 and that the other threats occurred after he left for Brazil. When confronted with the fact that he states that he and his family received threats in XXXX 2012, he reiterated that his family was threatened after he left for Brazil. [21] Moreover, when asked how many attacks there had been, since he states in his written account that there had been several, the appellant testified that there was only one attack in XXXX 2012 and none in XXXX. He also added that he did not know if the men had been armed, but this information is provided in his BOC Form. He explained this contradiction by the fact that after he left for Brazil, armed men allegedly showed up at his home. [22] The RPD found that the appellant's credibility was undermined. It added that it is [translation] "reasonable to expect the claimant to testify consistently as to why he left his country."6 It added that the number of attacks and the description of the perpetrators are elements [translation] "that are central to the refugee protection claim,"7 and the fact that he contradicts himself undermines his credibility. [23] The appellant does not submit any argument in his memorandum regarding this conclusion. [24] The RPD did not err. The fact that the appellant contradicts himself on various elements that I characterize as material undermines his credibility. Like the RPD, I am of the opinion that these elements are central to the refugee protection claim and that it could have expected the appellant to be able to identify them. - Omission as to where the appellant sought refuge [25] At his hearing, the appellant stated that he sought refuge in Belle-Anse, then in Port-au-Prince at his cousin's home. When confronted with the fact that he indicates only one address on his IMM-5669 form, an address in Gonaïves, the appellant stated that he had not lived at that address since 2008 and that he was living in Belle-Anse at the time of the events in XXXX 2012. [26] The RPD concluded that the fact that the appellant took refuge at home after receiving threats [translation] "mitigates ... the intensity of the threat against him."8 [27] In his memorandum, the appellant states that his refuge in Belle-Anse was only temporary and for a few days, and that he completed the form at the border.9 [28] The RPD rendered the correct decision. I am of the view that the panel could have expected the appellant to list all of the addresses in his immigration form, whether they were temporary or permanent. I cannot accept the appellant's argument that he completed the form at the border. This argument in no way explains this omission, especially when he lists the addresses of where he lived for less than a month in different countries in the form.10 The panel therefore could have expected him to list his addresses in Haiti. In my opinion, this omission undermines his credibility as to the alleged fear in Haiti. - The appellant's inconsistent behaviour when he returned to Haiti in XXXX 2015 [29] The appellant declared that he returned to Haiti, specifically to his home in Belle-Anse, in XXXX 2015. When asked why he returned to the country, considering that he stated that his brother was killed by the criminals who were looking for him, the appellant replied that he did not go out during the day and that he did not think that the criminals would find him. [30] The RPD concluded that the appellant's behaviour of [translation] "returning precisely to where he lived and where he alleges that his brother was killed" 11 is inconsistent with that of a person who fears for his life. It therefore drew a negative inference. [31] The appellant makes no argument in his memorandum regarding this conclusion. [32] In my view, the RPD did not err in concluding that the appellant's behaviour was inconsistent with that of a person who fears for his life and safety. Considering that the appellant alleges that he has feared for his life in Haiti since 2012, that armed men threatened his family while he was living in Brazil, and that his brother was killed by the same criminals, the panel could have expected him to choose a different location in the country. In my opinion, the fact that he took refuge at home leads me to conclude that his behaviour was inconsistent with that of a person who fears for his life. - The Refugee Protection Division correctly assessed the evidence on the record [33] The appellant submits that the RPD did not take into account the Federal Court's instructions, that is, [translation] "to not just focus on exaggerations"12 or "not to disregard aspects of the evidence that are not favourable to the claimant."13 He considers that the RPD made unreasonable conclusions in its interpretation. [34] Respectfully, I disagree with the appellant's argument. Following my independent analysis, I conclude that the RPD correctly found that the appellant's credibility was undermined by various omissions and contradictions that do not, in my view, constitute exaggerations. Moreover, I am of the opinion that the RPD correctly found that his behaviour was inconsistent with his alleged fear in Haiti. [35] The overall assessment of the evidence and the RPD's conclusions are correct. CONCLUSION [36] For these reasons, the RAD confirms the RPD's determination and determines that XXXX XXXX is neither a "refugee" within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA) nor a person in need of protection under section 97 of the IRPA. [37] The appeal is dismissed. (signed) Jolyane Lefebvre Me Jolyane Lefebvre November 2, 2020 Date IRB translation Original language: French 1 Appellant's memorandum, paragraph 17. 2 Recording of the hearing, 20:10 3 Appellant's memorandum, paragraph 8. 4 Appellant's memorandum, paragraph 8. 5 Refugee Protection Division (RPD) decision, paragraph 15. 6 RPD decision, paragraph 18. 7 RPD decision, paragraph 18. 8 RPD decision, paragraph 19. 9 Appellant's memorandum, paragraph 16. 10 RPD document, page 93 of 123, IMM-5669 form, section 12 (Addresses). 11 RPD decision, paragraph 20. 12 Appellant's memorandum, paragraph 17. 13 Appellant's memorandum, paragraph 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-17805 RAD.25.02 (January 2020) Disponible en français 7 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