MB9-22416

RAD File No. / No de dossier de la SAR : MB9-22416 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 December 17, 2020 Date de la décision Panel Me Jolyane Lefebvre Tribunal Counsel for the person who is the subject of the appeal Serge Khoury 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, is a citizen of Haiti and is claiming refugee protection in Canada. [2] According to his Basis of Claim Form (BOC Form), the appellant fears being killed by an individual by the first name of XXXX. This individual allegedly purchased the property lot on which the appellant had built his house. In 2012, while the appellant was in the Dominican Republic, the new owner of the property allegedly ordered his wife, who was living in the appellant's house, to leave the premises. He alleges that he moved his wife and children to different housing in Haiti and that he left for Brazil. He asserts that he was threatened in Brazil and that criminals also threatened his family in Haiti. The appellant allegedly left Brazil in XXXX 2016 to travel to the United States. [3] The Refugee Protection Division (RPD) rejected the appellant's refugee protection claim. It made multiple adverse findings concerning his credibility and found that he had not established, on a balance of probabilities, that he would be subjected personally to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment if he returned to Haiti. It concluded further that exclusion under Article 1E of the Convention did not apply to his case. [4] The appellant is challenging the RPD's decision. He argues that his testimony was consistent and plausible and that it did not contradict the facts of his claim. He argues that the RPD failed to consider his level of education and disregarded the documentary evidence filed. [5] I conducted an independent analysis of the evidence, taking into consideration the record of the Refugee Appeal Division (RAD) and that of the RPD, including the recording of the hearing before the RPD. DETERMINATION [6] I dismiss the appeal. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS The Refugee Protection Division did not err in its findings on the appellant's credibility - Timing of when the agent of persecution claimed the appellant's property [7] At the hearing, the appellant indicated that in 2014, the new owner of his property, a man by the first name of XXXX, had sent people to inform him that the entire property belonged to him. When questioned as to the details of this encounter, such as how and by whom this news was announced to him, the appellant indicated that men working for XXXX had informed him. When asked again and a third time about the details of this encounter, the appellant responded that he was in Haiti and still living in the house. [8] The RPD concluded that the appellant responded [translation] "in a very general manner to the multiple questions put to him to obtain details concerning the circumstances as to how he learned that XXXX was claiming ownership of his property."1 It considered that this event formed the basis of the claim, and it did not consider credible that the appellant could not explain this event in greater detail. [9] In his memorandum, the appellant submits that the panel [translation] "should not be limiting itself to searching the evidence for contradictions or elements that are not credible for the purpose of making a case"2 and that in his view, he answered the RPD's questions perfectly. [10] The RPD did not err. Upon listening to the recording of the hearing, I note that the appellant offered little explanation when the member questioned him concerning this event. Like the RPD, I consider that this event is important, given that it is the event that triggered his alleged problems. I am of the opinion that the panel could expect the appellant to be able to explain this encounter in a more spontaneous and detailed manner. I cannot accept the arguments raised by the appellant and I do not consider that the RPD limited itself to searching for elements that were not credible. That being the case, I consider that this undermines the appellant's credibility. The RPD's decision was correct. - Contradiction concerning the attack on the residence of the appellant's wife [11] The appellant testified at the hearing that in late XXXX 2014, while he was in Brazil, his wife and children were attacked at their new residence. He alleges that his wife heard a knock on the door and that she realized the apartment door had been forced open. When asked whether his wife had seen who had forced the door open, he stated that she had not seen anyone. When the fact was put to him that he had indicated in his BOC Form that criminals had entered the home, smashed everything in it and uttered death threats against his wife, he responded that it was at night and that his wife had not seen their faces. When asked again, the appellant added that his wife had not seen their faces but that she had heard them shout that if she continued, they would come back the next time. When confronted with the fact that these were not the statements reported in his BOC Form, the appellant indicated that [translation] "that's how things usually happened in Haiti."3 [12] The RPD concluded that the appellant's explanations were not satisfactory and that his credibility was undermined. [13] In his memorandum, the appellant raises the fact that there was a change in interpreters at this point in the hearing. He adds that he was not present at the time of the attack, that he was reporting what his wife stated to him and that although the RPD had asked him the same question multiple times, he had always given the same answer. He also added that his BOC Form was translated from Creole into French and that this caused harm to him. [14] I am of the opinion that the RPD did not err. While there was a change in interpreters at that point in the hearing, I note that the member repeated the questions to the appellant when the new interpreter arrived. The recording of the hearing reveals that the response given by the appellant after the change in interpreters still contradicted the version documented in his BOC Form. I agree with the appellant's assertion that he was reporting what his wife stated to him. However, the panel could expect him to recount the same story and use the same words in his BOC Form as during testimony. Moreover, I cannot accept his argument that his BOC Form was translated and that this caused harm to him, because he confirmed at the start of the hearing that the information was complete, true and correct. This undermines his credibility. - Omission from Basis of Claim Form of threats against the appellant's wife [15] At the start of the hearing, the appellant indicated that he wished to add information to his BOC Form. He indicated that following the events in XXXX 2014, his wife and children had sought refuge in Cap-Haïtien. When asked whether his wife and children had had any problems in that location, he replied that they had not had any problems at first but that XXXX had later found them and made verbal threats against them. The appellant attributed this omission from his BOC Form to the fact that he had completed his first BOC Form in Creole and that the French translation did not include all of the details. He added that the interpreter had advised him that this was a general description and that he could add all of the details at his hearing. [16] The RPD rejected the appellant's explanations. It concluded that after adding that his family had relocated to Cap-Haïtien, he had confirmed that all information in his BOC Form was true and correct. It added that even if the panel gave him the benefit of the doubt regarding this addition, he had not [translation] "explained why he did not amend his BOC Form at the start of the hearing to state that his family had been threatened in Cap-Haïtien."4 Concerning the translation of his BOC Form, it concluded that he had been able to review it in its entirety and was responsible for its content. It concluded that [translation] "this unexplained omission of alleged threats is significant and undermines"5 his credibility. [17] In his memorandum, the appellant argues that he cannot be penalized as to when he proceeded with the amendment to his BOC Form or held responsible for [translation] "shortcomings in the written interpretation of the document or with respect to misinformation provided by his counsel...who had advised him that the BOC Form was supposed to be general and that he could discuss the details at the hearing."6 [18] The RPD did not err. The appellant's failure to add that his wife and children had been threatened in Cap-Haïtien when he amended his BOC Form at the start of the hearing undermines his credibility. Contrary to the appellant's arguments in his memorandum, it is not the timing of when he amended his BOC Form that poses a problem but rather the failure to indicate that his wife and children had been threatened in 2016. Meanwhile, I cannot accept the argument concerning the interpretation. As stated by the RPD, he confirmed at the start of the hearing that all the information in his BOC Form was not only true and correct but also complete. What is more, I note that contrary to the appellant's allegations, his written account appended to the BOC Form is not only general but also goes into great detail concerning other, less significant, aspects. - Omission from Basis of Claim Form concerning status of house in XXXX [19] At the hearing, the member asked the appellant whether the house in XXXX was occupied. He replied that it had been torn down. When asked why this information was not documented in his BOC Form, he responded that he had included it in his account.7 When confronted with the fact that this information was not there, the appellant indicated that he had not included it because his wife had left XXXX and he had not received confirmation that the house was gone. Later at the hearing, however, he stated that people in his neighbourhood had confirmed to him that his house had been torn down by XXXX.8 [20] The RPD found that the appellant had changed his testimony during the hearing and that this additional omission undermined his credibility. [21] The appellant did not submit any arguments concerning this finding in his memorandum. [22] The RPD did not err in concluding that the appellant had changed his testimony during the hearing. The recording of the hearing indicates that he provided multiple responses when the RPD member asked him about the status of the house in XXXX. In my opinion, this undermines his credibility. - Appellant's personal characteristics [23] The appellant argues that the RPD failed to consider his level of education and XXXX state. He states that he has a [translation] "very modest"9 education corresponding to four years of secondary school. [24] With respect, I disagree with the arguments made by the appellant. First, I note that no example or specific moment at the hearing is cited as to when the RPD allegedly erred in this regard. Next, apart from asking him what his highest level of education was, counsel for the appellant never made reference to this characteristic, nor to his XXXX state, during the hearing. That being said, after listening to the hearing, I observe that the appellant was able to answer all of the member's questions and that the latter explained to him in detail how the hearing would be conducted, offered to reword her questions whenever necessary and asked him to advise her if he needed to take a recess in addition to asking him if he had any questions before proceeding with questioning. I see no indication that the RPD erred. - Documentary evidence [25] Regarding the appellant's allegations that the member did not consider the exhibits or the documentary evidence on Haiti and based her reasoning on the appellant's credibility, I do not see any issues with the approach taken by the RPD member. The RPD identified omissions and contradictions that led it to conclude that the appellant was not credible. The RAD is of the view that the information found in the documentary evidence cannot take the place of a claimant's testimony and that in this case, the appellant failed to discharge his burden to establish the existence of a serious possibility of persecution or that he would be subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment. [26] That being said, I consider that the exhibits submitted in evidence, namely the deed to the property in XXXX, his marriage certificate and two photographs of a house, are, regardless, insufficient to demonstrate the events alleged and the appellant's alleged fear in Haiti. [27] The RPD's overall assessment of the evidence and its findings are correct. CONCLUSION [28] For these reasons, the RAD confirms the determination of the RPD 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. [29] The appeal is dismissed. (signed) Jolyane Lefebvre Me Jolyane Lefebvre December 17, 2020 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) decision, at para. 12. 2 Appellant's memorandum, at para. 34. 3 Recording of hearing, at 1:25:23. 4 RPD decision, at para. 14. 5 RPD decision, at para. 14. 6 Appellants' memorandum, at para. 68. 7 Recording of hearing, at 29:57. 8 Recording of hearing, at 1:34:49 to 1:37:06. 9 Appellant's memorandum, at para. 32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-22416 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