MB8-24903

RAD File No. / No de dossier de la SAR : MB8-24903 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 4, 2019 Date de la décision Panel Me Julie Corry Tribunal Counsel for the person who is the subject of the appeal Me Laurent Gryner 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, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] I dismiss the appeal and confirm the RPD's determination.1 [3] The RPD did not err in its finding that the appellant was not credible regarding his work for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX political party or his fear of members of an opposing party who allegedly threatened him in 2015. ALLEGED FACTS2 [4] The appellant's allegations, which he was able to elaborate on further in his testimony, were summarized by the RPD as follows. [5] The appellant alleges that he worked for the XXXX from XXXX 2014 to XXXX 2015. He put up posters throughout Port-au-Prince for this political party. [6] He submits that on XXXX XXXX, 2015, armed individuals went to his home to kill him, but the appellant was not home. The individuals then killed the appellant's father at close range. The appellant did not go home. In the end, he left Haiti on XXXX XXXX, 2015, for Brazil. [7] The appellant arrived in Brazil on XXXX XXXX, 2015. He was given permanent residence in Brazil, but he left that country in XXXX 2016. He stated that he was attacked and injured by Brazilians who accused him of [translation] "stealing" jobs from Brazilians. Fearing for his safety, the appellant left Brazil on XXXX XXXX, 2016. He arrived in the United States in XXXX 2016, but fearing that he would be sent back to Haiti because of the policies of the new American president, he decided to come to Canada in XXXX 2017. The appellant then submitted a claim for refugee protection with Canadian authorities. [8] The Minister of Immigration, Refugees and Citizenship (the Minister) intervened before the RPD to argue that the appellant was excluded pursuant to section 98 of the Immigration and Refugee Protection Act, which states that a person referred to in section E or F of Article 1 of the United Nations Convention Relating to the Status of Refugees (Convention) is not a Convention refugee or a person in need of protection. [9] The reason he would be excluded is that he had obtained permanent residence in Brazil. [10] The Minister did not take part in the RPD hearing, and he did not intervene before the RAD. ROLE OF THE REFUGEE APPEAL DIVISION [11] In conducting my independent analysis of all the evidence, I am required to review the record to determine whether the RPD erred in relation to each error alleged by the appellant on issues of fact, law and mixed fact and law. For this analysis I have applied the correctness standard, as set out in Huruglica.3 [12] I can show deference if I find that the RPD enjoyed a meaningful advantage in the assessment of credibility. In this exceptional case, I will explain how the RPD had a meaningful advantage. ANALYSIS [13] The issue to determine is whether the RPD erred in assessing the appellant's credibility and his prospective fear. [14] In my opinion, the omission and inconsistencies raised by the RPD, taken together, were significant and went straight to the heart of the appellant's credibility on the issue of whether he had worked for the XXXX party and whether this work put him in harm's way. [15] After conducting my own analysis of the evidence on the record, including listening to the recording of the hearing, I find that the appellant's arguments are not founded and that the RPD's decision is correct. Permanent residence in Brazil-Exclusion under section 98 of the Immigration and Refugee Protection Act and Article 1E of the United Nations Convention Relating to the Status of Refugees [16] The appellant confirmed in his evidence and in his testimony that he was granted permanent residence in Brazil in XXXX 2015, but that he had left that country in XXXX 2016. He alleges that because he was absent from Brazil for more than two years, he had lost his status. [17] The Minister agreed that the appellant had been absent for more than two years, but argued that he established prima facie that Article 1E of the Convention applies to the appellant and that the appellant must now establish that he no longer has such status in Brazil or that he has a well-founded fear of persecution there or a risk of harm within the meaning of subsection 97(1). [18] The Minister adds that he had a lack of subjective fear because if the appellant really were afraid of being sent back to Haiti, he would not have left Brazil and the protection he had in that country. [19] The RPD referred to the documentary evidence, but concluded that this documentation does not indicate whether the refugee protection claimant can return to Brazil to assert his rights after an absence of more than two years. It therefore cannot be stated that he is excluded. Without such information, the RPD concluded that the appellant cannot return to Brazil and that he has lost his permanent residence, since he was absent from that country for more than two years. [20] The appellant does not comment on this issue in his appeal memorandum, and the Minister did not appeal it either. [21] I do not see any reason to interfere in this RPD conclusion. Credibility - Omission in the IMM5669 form4 [22] The appellant testified that, in XXXX 2014, he started to work for the XXXX and that two days a week he put up posters throughout Port-au-Prince for the party. However, he failed to mention this work in his answer to question 8 in his IMM5669 immigration form. [23] The RPD confronted him about this omission, and he answered that because it was not a permanent job, he had not seen it fit to include. The RPD was not satisfied with this explanation because, if the appellant did have problems in Haiti by reason of this job, the RPD would have expected that this information be in his IMM5669 form. The RPD was of the opinion that this omission cast a shadow on the appellant's credibility when he stated that he worked for the XXXX. [24] In his appeal memorandum, the appellant maintains that his work for the XXXX beginning in XXXX 2014 was described in his Basis of Claim Form. [25] I agree with the RPD that the omission raised casts a shadow on his credibility, and the RPD conclusion is correct. In my opinion, it is a minor element, but it is in addition to the more important credibility issues described below. Election campaign5 [26] The appellant stated that he put up posters for the XXXX from XXXX 2014 to XXXX 2015 during the election campaign. He also testified that the posters had the photograph of XXXX XXXX XXXX XXXX. [27] The RPD did not believe the appellant because not only had the election campaign not started in 2014, but XXXX XXXX XXXX XXXX was not yet a XXXX candidate. He was a XXXX from the department XXXX XXXX XXXX XXXX the electoral riding in XXXX Haiti. [28] The RPD confronted the appellant with this information, and he answered that even outside the election campaigns, he put up posters for the party. [29] The RPD questioned this statement because the documentary evidence indicates that the XXXX party was created in XXXX 2014 and that the party also held its first convention in XXXX 2015. The documentary evidence is clear that there was no election campaign in 2014, and that the first round of voting took place in August 2015.6 The appellant left his country in XXXX 2015. [30] Consequently, the RPD did not believe that the appellant had worked for the XXXX in 2014 or that he was at risk by reason of his work. [31] In his appeal memorandum, the appellant states that even though the elections were postponed indefinitely in 2013 and 2014, he had still put up posters in that period in preparation for the elections to be held, with the photograph of XXXX XXXX XXXX XXXX. [32] I read the same documentation that is still in the national documentation on Haiti,7 and I concur with the RPD, for the same reasons, that the inconsistences between the appellant's statements and the information in the documentary evidence undermine his credibility. His explanation that he did this work even outside the election campaigns is neither logical nor satisfactory. [33] The appellant testified that he put up posters, starting in July 2014, for the XXXX party with the photograph of de XXXX XXXX XXXX XXXX, when this party did not exist and XXXX XXXX XXXX XXXX was not yet a candidate. [34] The RPD's conclusion is correct. Death of the appellant's father8 [35] The appellant testified that individuals from a rival party came to his home on XXXX XXXX, 2015, to look for him, but he was not there, and those individuals killed his father. [36] The RPD analyzed the appellant's documents in support of this allegation, but concluded that he had not proven his father's death in relation to the problems that the appellant had experienced because of his work with the XXXX. [37] The death certificate does not describe the circumstances of the death, nor does the transcript extract from the court registry, even though the latter document indicates that the death was violent. The RPD did not grant any probative value to these documents. [38] In his appeal memorandum, the appellant states that a death certificate never discloses the circumstances of the death and that the transcript extract from the registry notes that his father died because individuals killed him with a bullet to the XXXX. He argues that the RPD erred and that his documents have probative value. [39] I also analyzed the documents in question and agree with the RPD for the same reasons. It can be seen that the appellant's father was killed on XXXX XXXX, 2015, as the result of a terrible, violent act, but it cannot be claimed from the appellant's evidence that it was in fact the appellant who was the target of the perpetrators or that they had come primarily for him because of his work for the XXXX party. [40] Therefore, the two above-mentioned documents do not have any probative value, and the RPD's conclusion is correct. [41] The cumulative effect of the negative findings with respect to the appellant's credibility and the lack of probative value of his documents mean that he did not meet his burden of establishing a serious possibility of persecution should he return to Haiti or that he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment. CONCLUSION [42] For all these reasons, I confirm the RPD's determination that XXXX XXXX is not a Convention refugee or a person in need of protection.9 [43] The appeal is dismissed. (Signed by) Julie Corry Me Julie Corry September 4, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, subs. 111(1). 2 Reasons and decision of the RPD on October 22, 2018, paras. 3-6, on p. 4-5 of the RPD record (RPD reasons); Appellant's memorandum dated November 27, 2018, paras. 1-5, page 29 of the appellant's record; Basis of Claim Forms with the account, at pp. 10-32, 107-124, 140-150 of the RPD record. 3 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, in paras. 78, 98 and 103. 4 RPD reasons, in para. 13. 5 RPD reasons, in paras. 14-17. 6 XXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXX XXXXXXXX XXX XXX XXXXXXXX XXXXXXXXXXX XX 7 NDP on Haiti, June 28, 2019. Tab 4.19. 8 RPD reasons, in paras. 18-19. 9 IRPA, s. 96 and subss. 97(1) and 111(1). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-24903 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français