MB8-23300

RAD File No. / No de dossier de la SAR : MB8-23300 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 September 13, 2019 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the person who is the subject of the appeal Me Luciano Mascaro 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 (the appellant), a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] The appellant claims that he fears being killed by supporters of the parti Réponse paysanne (Repons Peyiza) [peasant response party]. Due to his affiliation with the parti du Rassemblement des Démocrates Nationaux Progressistes (RDNP) [assembly of progressive national democrats party], they reportedly threatened him over the telephone and then attacked him at home.1 After he escaped, they apparently raped and killed one of his three sisters who was living with him. Since this incident, his other two sisters have reportedly disappeared. [3] The appellant allegedly left Haiti on XXXX XXXX XXXX 2012, and arrived in Brazil on XXXX XXXX XXXX He apparently lived there for four years and had a daughter there in 2013. His last work permit expired in 2016. That same year, he reportedly left for the United States after being attacked by two Brazilians who accused him of stealing their jobs. In 2017, he allegedly claimed refugee protection in Canada. [4] The RPD found that the appellant was not excluded under Article 1E of the Convention and that he was not credible with respect to his fears if he were to return to Haiti. [5] The Minister of Immigration, Refugees and Citizenship intervened before the RPD. He did not intervene on appeal. [6] The appellant alleges that the RPD erred in noting contradictions, omissions and inconsistencies in the evidence, which undermined his credibility. [7] Having conducted an independent analysis of the evidence, including listening to the recording of the RPD hearing, the Refugee Appeal Division (RAD) concurs with the RPD's finding regarding the appellant's credibility, confirms the RPD's negative decision and dismisses the appeal. [8] The RAD is of the opinion that the determinative issue is the appellant's credibility. THE REFUGEE APPEAL DIVISION'S ROLE [9] The RAD's role is to review RPD decisions on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in the assessment and weighing of oral evidence it hears, which, in particular cases, may attract deference.2 In this case, the RAD applied the standard of correctness. ANALYSIS Did the Refugee Protection Division err in its findings regarding the credibility of the appellant's fear of returning to Haiti? [10] The RPD states that it did not believe that the appellant and his family had been targeted in an attack by criminals because of his political involvement in support of the RDNP or that he would be if he were to return to Haiti. The RAD comes to the same conclusion. Location of the incident and the appellant's sister's body [11] According to the RPD, the appellant provided an unreasonable explanation that undermined his credibility to justify that, based on the report by the justice of the peace that he submitted, his sister's body was found in the third section of XXXX XXXX, where his father had allegedly once lived, even though his sister was killed at his home on XXXX XXXX3 in Verrettes, where he was living with his other two sisters and his mother. [12] In his memorandum, the appellant claims that, at the hearing, he explained that he did not know why his sister's body was found in his father's home, 10 minutes from the scene of the crime. He wondered whether his father might have brought his sister home because she was injured and that she died later, but he does not know. The appellant adds that he did not realize that the report by the justice of the peace indicates that his sister's body was at his father's home. The appellant is of the opinion that it is capricious on the part of the RPD to claim that the appellant should have amended his Basis of Claim Form (BOC Form) to include this fact.4 [13] The RAD is of the opinion that the RPD was correct in questioning the appellant's credibility. [14] The RAD noted significant contradictions and inconsistencies in the appellant's BOC Form, despite the fact that he had confirmed at the beginning of the hearing that it was complete, true and correct; in the report by the justice of the peace that he filed to corroborate what had happened and for which he stated at the beginning of the hearing that he had not noted any errors; and in his sister's death certificate. [15] In his BOC Form, the appellant states the following: [translation] I lived in Verette with my mother and three sisters. During the attack against me and my family on January 15, 2011, I was beaten up, but I was able to escape. My mother and two sisters managed to flee. My sister...XXXX was raped before she was murdered by Michel Martelly's militia. The criminals set our house on fire, and the dogs died. [16] Therefore, the appellant's sister was allegedly murdered at his home on XXXX Street in Verrettes; the home was reportedly set on fire, and the dogs died. [17] However, according to the report by the justice of the peace dated January 16, 2011, which was prepared at his father's request, it was the home in the third section of XXXX XXXX that was set on fire and it was there that the appellant's sister's body and the dead dogs were found:5 [translation] At the oral request of Mr. XXXX...identified by number 05-08-99-1962-04-00069, residing and domiciled in Verrettes. We travelled to the third section of XXXX XXXX to prepare a report on the criminal act. Once we arrived on the scene, we observed a home that was completely burned down. We also observed the lifeless body of a young woman named...XXXX, dressed in a blue skirt and a green and white blouse. We have and finally found the dogs that were dead. [18] Mr. XXXX...is the appellant's father. The RAD notes that he did not sign the report by the justice of the peace and the signature on the report refers to a female declarant: [translation] "Required to sign her report, she did so." [19] At the hearing, the appellant testified that after he had fled, he called his father, who was living with his common-law partner in an area called XXXX in Verrettes, told him about the incident and asked him to come as quickly as possible to his home on XXXX Street in Verrettes. [20] At the hearing, the appellant's testimony was inconsistent with respect to his father's addresses. The appellant stated a few times that his father no longer lived in the third section of XXXX XXXX, but rather in XXXX, adding that his father still went to the third section of XXXX XXXX, and finally stated that he did not know how many addresses his father had. [21] Furthermore, the RAD noted that the appellant's sister's death certificate6 indicates that she lived in the third section of XXXX XXXX, that she died there and that the appellant's father also lives in the third section of XXXX XXXX. [22] Based on these documents, the appellant's BOC Form and his testimony at the hearing, the incident allegedly occurred in two different places, the appellant's sister and father reportedly had two residences, and the appellant's sister's body was moved to the third section of XXXX XXXX XXXX XXXXven though, according to the appellant, the crime was committed at his home on XXXX Street, which contradicts the report by the justice of the peace, which placed it in the third section of XXXX XXXX. [23] The RAD draws a negative inference from the inconsistent information in the various documents provided by the appellant and the contradiction between these documents, the appellant's testimony at the hearing and his BOC Form. [24] The RAD, like the RPD, therefore finds that the appellant's credibility is significantly undermined. Presence of criminals around the family home after the incident and the current fear [25] The RPD did not find that the appellant's statement was credible, namely, that criminals are still looking for him seven years after the incident, given that his mother, whom he speaks to on the telephone regularly, never mentioned it. He also testified at the hearing that his father had told him that the criminals were continuing to lurk about the area around his former residence, but this was not in his BOC Form. [26] In his memorandum, the appellant states that the RPD should not have drawn a negative inference as to his credibility from the fact that his amended BOC Form does not state that the criminals were still lurking about the area around his home. He also states that he thought that he had mentioned it in his BOC Form and that it was part of his account. [27] The RPD was of the opinion that the appellant, in adding this element to his testimony, despite it never being mentioned earlier or in the original or amended BOC Forms, tried to adjust it. Moreover, it did not accept the appellant's explanation that he had described this incident in Creole in his account, as he had confirmed at the beginning of the hearing that his BOC Form was complete, true and correct. [28] The RAD noted that the appellant filed an amended BOC Form on the day of the hearing, in which he states that, before the incident, he had received threatening telephone calls asking him to leave the RDNP.7 It is surprising that the appellant did not use this amendment to add that his father had allegedly told him that the criminals were still lurking around his former residence, given that it is a fundamental aspect of his prospective fear if he were to return to Haiti. [29] The RAD agrees with the RPD's finding that the appellant's credibility is undermined. Disappearance of the appellant's two sisters since the incident [30] The RPD noted that the appellant's account makes no mention of this disappearance. It found that there seemed to be inconsistencies in what the appellant had recounted at the hearing, and it drew a negative inference as to his credibility. The fact that two people went missing without news or apparent cause for almost eight years led the RPD to doubt the appellant's sincerity. In response to one of the RPD's questions, the appellant stated that he did not have any documents corroborating the various steps that his mother had taken to find his two sisters. The RPD did not believe that the appellant's two sisters had disappeared. [31] In his memorandum, the appellant submits that he testified very spontaneously about his sisters' disappearance in response to the RPD's questions about his family. He stated that he did not know whether they were still alive, that he was aware that his mother had filed a complaint with the authorities and made calls to radio stations to find them, and that his father was not cooperating. He also mentioned that he had done Facebook searches, to no avail. [32] The appellant argues that the RPD cannot draw a negative inference from the lack of corroborative documents because it did not ask him why he had failed to provide them. [33] In this respect, he cites paragraph 22 of Dundar:8 Where valid reasons to doubt a claimant's credibility exist, the Board may draw negative credibility inferences from a failure to provide supporting evidence. However, in my opinion, these inferences may only be drawn where the applicant has also been unable to provide a reasonable explanation for his or her lack of corroborating material. [34] Contrary to the appellant's statement, the RAD is of the opinion that the RPD did not make a negative finding with respect to the appellant's credibility solely because of the lack of documents corroborating his mother's searches. Overall, the RPD found that what the appellant had stated about the disappearance of his two sisters was inconsistent.9 [35] In addition, the RAD is of the opinion that the appellant's failure to mention the disappearance of his two sisters in his BOC Form and amended BOC Form, even though this fact is directly related to his fear of returning to Haiti, undermines his credibility, particularly since he had stated at the beginning of the hearing that his original BOC Form and amended BOC Form, which was provided the same morning, were complete, true and correct. The RAD draws a negative inference as to the appellant's credibility from his failure to mention his sisters' disappearance before the hearing, considering the importance of this fact in the context of his refugee protection claim. [36] The RAD finds that the reasons outlined above are sufficient to question the appellant's credibility about the occurrence of the incident at the core of his refugee protection claim and the risk of persecution that he could face if he were to return to Haiti. [37] The RAD concludes that the RPD's decision is correct. CONCLUSION [38] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, the RAD dismisses the appeal and confirms the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. Isabelle Parizeau Me Isabelle Parizeau September 13, 2019 Date IRB translation Original language: French 1 Date of incident: January 15, 2012, according to the Refugee Protection Division (RPD) Reasons and Decision, pp. 3 to 11, RPD record; date of incident: January 15, 2011, according to his Basis of Claim Form (BOC Form), p. 18, amended BOC Form, p. 105, death certificate for the appellant's sister, p. 107, report by the justice of the peace, p. 108, RPD record and audio recording of the RPD hearing, the appellant's testimony, see approximately between 37:16 and 37:57. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 RPD record, p. 69, [translation] "Marin Street." 4 The appellant's record, p. 15. 5 RPD record, p. 108. 6 Ibid., p. 107. 7 Ibid., p. 105. 8 Dundar v. Canada (Citizenship and Immigration), 2007 FC 1026. 9 RPD record, p. 10, paragraph 26 of the decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-23300 RAD.25.02 (April 4, 2019) Disponible en français 9 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