MB9-16452

RAD File No. / No de dossier de la SAR : MB9-16452 Private Proceeding/ Huis clos Reasons and Decision- Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision October 22, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the person who is the subject of the appeal Me Saïd Le Ber-Assiani 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 INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Haiti, is appealing against a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. [2] The appeal is dismissed for the following reasons. BACKGROUND [3] In his Basis of Claim Form (BOC Form), the appellant alleges that he fears for his life and safety in Haiti by reason of his political activities within the Organisation du peuple en lutte (OPL) [organization of the struggling people] party. [4] The appellant alleges that he was his party's XXXX with regard to the election on XXXX XXXX, 2015, in the commune of XXXX. He alleges that he was assaulted by unknown individuals twice, on XXXX XXXX and XXXX, 2015. He alleges that he left XXXX for Port-au-Prince in late XXXX 2015. [5] The appellant alleges that he was the victim of a [translation] "holdup" on the street in Port-au-Prince in XXXX 2016. An unknown individual allegedly fired gunshots at his home on XXXX XXXX, 2017. [6] After his wedding, the appellant left Haiti on XXXX XXXX, 2017, for the United States, from where he travelled on to Canada to claim refugee protection here. [7] Following a hearing held on May 30, 2019, and in written reasons dated June 27, 2019, the RPD rejected the refugee protection claim on grounds that the appellant's allegations were not credible. [8] The appellant submits before the Refugee Appeal Division (RAD) that the RPD erred in its assessment of his credibility for reasons that will be set out below under the Analysis heading, if necessary. [9] For these reasons, the appellant is asking the RAD to set aside the RPD's determination and grant him refugee protection or to refer the matter to the RPD to be re-determined by a differently constituted panel. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [10] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record in order to determine whether, as submitted by the appellant, the RPD erred. The exception to this rule concerns the RPD's findings in the assessment of the credibility of or the weight to be given to the oral evidence it hears, in cases where it enjoys a meaningful advantage. The RAD must then show a degree of deference to the RPD's findings.1 Reasons will be provided in my analysis if I consider that the RPD had a meaningful advantage. NEW EVIDENCE [11] The appellant produced before the RAD a document that he submits is new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), which provides that: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] In addition to these explicit conditions of subsection 110(4) of the Act, the RAD must consider the implicit conditions on the admissibility of new evidence as established by the Federal Court of Appeal in Singh2 and, in particular, the criteria of credibility and relevance of new evidence. [13] The document submitted is a report from XXXX XXXX XXXX, dated XXXX XXXX, 2019, concerning the appellant. In summary, it concludes that the appellant exhibits [translation] "XXXX XXXX and XXXX XXXX" that could "lead to XXXX XXXX XXXX." It is recommended that the appellant consult a specialist in XXXX. [14] In the statement submitted with his appellant's record, the appellant states that he is providing this report to [translation] "explain the reasons why he delivered inconsistent testimony" before the RPD. [15] For the following reasons, I do not accept this document before the RAD. [16] Although this document is dated after the date on which the claim was rejected, it discusses facts that existed before that date. I am of the opinion that the appellant did not demonstrate that this document could not have been available at the time of the RPD hearing. [17] I further add that the appellant was represented by counsel and that it would have been possible for the latter, or the appellant himself, to obtain a psychological or medical report of this nature prior to the hearing. I take into account the fact that a period of 18 months passed between the appellant's arrival in Canada and the date of his RPD hearing, which was ample time to obtain a document concerning the state of his health. The appellant or his counsel also could have asked the RPD for additional time to obtain this type of report had they observed memory or inconsistency problems on the part of the claimant during the hearing, which they did not do. [18] A RAD appeal is not a second chance to submit evidence to answer weaknesses identified by the RPD. An applicant is required to put their best foot forward to the RPD.3 [19] Additionally, and as analyzed below, I consider that the health issues alleged by the appellant cannot reasonably explain the contradictions and inconsistencies identified in the evidence that undermine the credibility of his central allegations. ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [20] Subsection 110(6) of the IRPA provides that: The Refugee Appeal Division may hold an oral hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [21] As no new evidence was accepted before the RAD, there is no cause to hold an oral hearing in this case. ANALYSIS [22] The issue in this case is whether the RPD erred in its assessment of the credibility of the appellant's allegations. [23] After analyzing all of the evidence submitted, the reasons for the RPD's decision and the appellant's record, I determine that the answer to that question is no, for the following reasons. [24] First, upon listening to the recording of the RPD hearing, I cannot help but note that the appellant's testimony was generally hesitant and difficult. The questions asked often had to be repeated to elicit answers from the appellant. [25] In any case, the RPD's decision was based on omissions and contradictions identified in the evidence presented which, in its opinion, only undermined the credibility of the appellant's allegations. [26] I am also of the opinion that, cumulatively, these factors are more than sufficient to undermine the appellant's credibility. These factors are as follows. A. There is a contradiction as to whether or not the appellant was politically active after XXXX XXXX, 2015. [27] A major contradiction was noted in the appellant's testimony with respect to a central element of his claim, namely, his political activities. [28] When questioned in this regard, the appellant hesitated and then initially responded that he [translation] "was not very active" before stating, when asked again for clarification, that in 2016 he had attended a party meeting in the commune of XXXX, where he was considering running for XXXX or XXXX. However, the appellant went on to testify that he did not return to XXXX after fleeing in XXXX 2015. When asked to explain this contradiction, the appellant could state only that he had mixed up the dates and that he no longer recalled taking part in political activities after XXXX 2015. B. The appellant returned to live at his home in Port-au-Prince one month after the alleged attempt on his life on XXXX XXXX, 2017. [29] When questioned about this, the appellant responded that he had thought that enough time had passed, that the persons who had wanted to kill him would have forgotten about him, that he needed to work, that his home was a [translation] "hub of activity" and, lastly, that he was to get married in XXXX to his fiancée, with whom he lived. [30] Like the RPD, I consider that this behaviour is inconsistent with that of a person who alleges that he fears being killed for his political activities. In my view, the explanations provided by the appellant to justify returning home after one month are, in the circumstances, not reasonable. [31] Moreover, the appellant indicates, on the one hand, that he believed he was safe at his home, since he did not have any problems until he received a threatening call in XXXX 2017, and that, on the other hand, people were asking about him in the neighbourhood in XXXX 2017. [32] When questioned as to why he does not state in his BOC Form that strangers were asking about him in XXXX 2017, the appellant replied that he did not do so because no physical assault had occurred. [33] I consider that the appellant's testimony on this matter is contradictory, but also that the omission is significant and no reasonable explanation was provided for it. To the contrary, the appellant states in his BOC Form that he did not have any problems between XXXX XXXX, 2017, and late XXXX of that year. The fact that strangers were looking for him is important to the appellant's claim, and its omission only undermines his credibility. C. Information about the appellant was shared publicly ahead of his marriage, which took place on XXXX XXXX, 2017. [34] When asked why he had agreed to the information being published in late XXXX and early XXXX 2017, when he claims that people were looking for him, the appellant responded that it was the justice of the peace who published it. [35] I also consider that this behaviour is inconsistent with that of a person who alleges that he fears being found and killed for political reasons. Although the justice of the peace is responsible for publishing this information for weddings, the fact remains that it was the appellant who wanted to go ahead with the wedding when he had the option not to if it put his life in danger. D. There is a contradiction as to when the appellant decided to leave his country. [36] The appellant states in his BOC Form that he decided to leave his country on the evening of his wedding, on XXXX XXXX, 2017, after unknown persons inquired about meeting with him at the hotel where he was staying, whereas he testified that he decided to leave after the anonymous call in late XXXX 2017. [37] Although not in itself fatal to the appellant's credibility, this is another example of the manner in which the appellant testified throughout the hearing. This contradiction further compounds the cumulative factors undermining the appellant's credibility. [38] I would also add the following with respect to the appellant's credibility. The appellant failed to establish a fact that, in my view, appears fundamental to his claim, specifically: who was allegedly looking for him in order to kill him because of, according to him, his political activities? [39] Based on the evidence submitted, the appellant was not politically active at all after XXXX 2015. He left the commune of XXXX in XXXX 2015 and moved to Port-au-Prince and did not take part in the presidential election in November 2016 or the legislative election in January 2017. [40] The documentary evidence in the Immigration and Refugee Board of Canada's National Documentation Package (NDP) indicates that the OPL is a recognized political party in Haiti (see, for example, Tab 4.26 of the NDP of September 1, 2020),4 but nowhere is it indicated that its members or, in the appellant's case, former members are actively sought with a view to assaulting or killing them. The appellant also did not submit any documentation in this regard. [41] Although the appellant is not obliged to explain the actions of others, it appears unlikely nonetheless that, in the circumstances, anyone would be searching for the appellant in Port-au-Prince after XXXX 2015 for political reasons. [42] Like the RPD, I also consider that the documents submitted by the appellant in an effort to corroborate his allegations are insufficient to offset the factors identified that undermine his credibility. [43] Notably, the letters of support from friends (P-10 and P-11) do not indicate that they directly witnessed the events alleged and simply reiterate what the appellant appears to have recounted to the people who wrote them. The reports from the peace court (P-12 and P-15) reiterate statements made by the appellant that were not considered credible with regard to the events that occurred after XXXX 2015. [44] Consequently, in light of the foregoing, I conclude that the appellant did not demonstrate that the RPD made errors that would justify the RAD's setting aside its determination. REMEDY [45] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [46] The appeal is dismissed. (signed) Normand Leduc Normand Leduc October 22, 2020 Date IRB translation Original language: French 1 Canada v. Huruglica, F.C.A., A-470-14. 2 M.C.I. v. Parminder Singh, 2016 F.C.A. 96. 3 Eshetie v. M.C.I., 2019 F.C. 1036, at paragraphs 33 and 34. 4 National Documentation Package, Haiti, September 1, 2020, Tab 4.26: The political situation, including presidential, legislative and municipal elections; active political parties (2015-July 2020). Immigration and Refugee Board of Canada. July 14, 2020. HTI200290.E. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-16452 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français