MB8-09359

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 File No. / N° de dossier de la SAR : MB8-09359 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 at Montreal, Quebec Appel instruit à Date of decision April 03 2019 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Ana Mercedes Henriquez 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 I. INTRODUCTION [1] XXXX XXXX XXXX (the Appellant), a citizen of Haiti, appeals a decision of the Refugee Protection Division (RPD) rendered on March 29, 2018, denying his claim for refugee protection. He requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find that he is a Convention refugee pursuant to s. 96 of the Immigration and Refugee Protection Act (IRPA) or a person in need of protection pursuant to s. 97. II. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the IRPA, I confirm the determination of the RPD, finding that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is denied. III. BACKGROUND [3] According to the Appellant's Basis of Claim (BOC)1, bandits ransacked and stole property from his home. Moreover, the bandits physically assaulted the Appellant and his child and threatened further harm. The Appellant states that he and his family are victimized and targeted by these bandits based on the perception that he has wealth given his job as a chauffeur with the University. [4] The Appellant's BOC provides a detailed description of the incidents involving the bandits: - On XXXX XXXX, 2010, bandits presented at the Appellant's home to obtain money. When they could not find any money in the house, they beat the Appellant who went to the hospital for injuries that he sustained. Then, he went to the Justice of the Peace to obtain a warrant that he subsequently presented to the police. The police did not proceed further because the warrant did not indicate the complete names of the bandits. - The bandits returned in XXXX 2010 at which point they took money belonging to the Appellant and left the home. - In XXXX 2013, the bandits returned to the Appellant's home and took more money. They warned the Appellant that they would return. At this juncture, the Appellant began seriously fearing for his life and that of his family. - In XXXX 2016, the bandits returned to the family home while the Appellant was absent. They broke everything in the house. - On XXXX XXXX, 2017 the bandits presented at the home, in his absence. They proceeded to physically shake the Appellant's young son and declared that they would kill the Appellant when they found him. Following the incident, the Appellant was contacted by his wife who advised him not to return home. [5] From 2010 to 2017, the Appellant made 4 different trips outside Haiti: he went twice to the Dominican Republic and twice to the USA. He did not claim asylum during these trips. [6] The Appellant fled Haiti on XXXX XXXX, 2017 and went to the USA. He arrived in Canada on August 8, 2017 made a refugee claim. [7] The Appellant fears the bandits in Haiti. Moreover, as a Haitian returnee, the Appellant fears returning to Haiti where he will be targeted based on the perception of wealth. [8] The RPD determined that the Appellant's evidence is not credible. The RPD noted significant discrepancies and omissions in his evidence. Moreover, the RPD found that the Appellant's failure to make a refugee claim in the Dominican Republic and USA negatively impacted the credibility of his subjective fear. Finally, the RPD determined that the Appellant's fear of being targeted by criminals as a Haitian returnee based on the perception that he is wealthy is a generalized risk to all Haitians. IV. DETERMINATIVE ISSUE [9] The Appellant argues that the RPD erred in assessing his credibility and erred in assessing his risk as a Haitian returnee who fears being targeted by criminals based on the perception that he is wealthy. V. SCOPE OF THE RAD APPEAL [10] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.2 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.3 Unless specifically stated below, I have applied the correctness standard in the present case. VI. ANALYSIS 1. The RPD did not err in finding that core aspects of the Appellant's evidence lacked credibility [11] In assessing the Appellant's credibility, I agree with Counsel who emphasizes that his client benefits from the presumption that sworn evidence is true.4 This being said, it is open to the RPD to find that core aspects of the Appellant's evidence lacks credibility, thus rebutting the presumption of truthfulness. [12] For the following reasons, I find that the RPD did not err in finding that the Appellant`s evidence lacked credibility. Subjective fear [13] The Appellant states that he and his family were victimized bandits who stole money and destroyed objects in their home on four separate occasions between 2010 and 2017. Throughout this period, the Appellant visited the Dominican Republic in XXXX 2014 and XXXX 2014. He also visited the USA in XXXX 2014 and XXXX 2016. He returned to Haiti at the conclusion of each trip. [14] When challenged by the RPD to explain why he returned to Haiti on 4 separate occasions if he feared bandits in Haiti, he stated that he had no intention of staying in a foreign country given that his family lives in Haiti and he works in Haiti. The RPD concluded that the Appellant's re-availment to Haiti following trips to the Dominican Republic and the USA notwithstanding his ongoing fear of harm, diminishes the credibility of his subjective fear. [15] On appeal, it is argued that the RPD erred by reaching an adverse credibility finding by ignoring the Appellant's testimony that each time that the bandits presented at his home, he thought it would be the last time. The final incident involving the bandits in XXXX 2017 was the most serious incident because it was directed at other members of his family including his young son and the bandits told his wife that they would kill him. Given the seriousness of the XXXX 2017 incident, the Appellant did not return home and fled to the USA two days later. [16] I am not persuaded by Counsel's submission. [17] First of all, the RPD is entitled to consider the Appellant's conduct and his explanation for his failure to flee harm at the first opportunity when assessing the credibility of his subjective fear. [18] When he testified before the RPD, the Appellant downplayed the seriousness of his first four encounters with bandits in his home, emphasizing that the 5th incident in XXXX 2017 was by far the most egregious. [19] In contrast, the Appellant's BOC describes that during his first encounter with bandits in April 2010, the Appellant was physically assaulted; required medical follow-up for a period of one month; and requested the assistance of the Justice of the Peace and the police. His BOC also states that at the beginning of 2013, he started to really fear for his life and that of his family following another encounter with bandits. Although he states that he really feared the bandits in 2013, he made two separate visits to the USA and returned to Haiti. [20] Moreover, while the Appellant decided to flee Haiti within 48 hours of his family's last encounter with bandits in XXXX 2017, he did not claim asylum in the USA once he arrived in that country. [21] While he testified that he did not claim asylum in the USA because he did not have the funds to pay a lawyer, it is noteworthy that he did not take any further steps to obtain assistance despite his allegation that he fears for his life in Haiti. For example, the Appellant could have consulted a different lawyer; an organization that comes to the aid of refugees or sought assistance from other government resources. However, he took no further steps which also negatively impacts the credibility of his subjective fear. [22] In sum, I find that the RPD did not err in finding that the Appellant's failure to claim asylum during 4 separate visits to the Dominican Republic and the USA, and his failure to make a refugee claim in the USA in XXXX 2017, is not compatible with someone who fears persecution or harm in his country. This was certainly one factor to consider in the overall assessment of the Appellant's credibility. The Appellant's decision to leave his family behind in Haiti [23] As noted above, the Appellant says that his family's XXXX 2017 encounter with bandits was the most serious incident because it was the first time that the bandits took aim at one of his children. It was this incident which prompted him to flee Haiti. [24] The RPD questioned the Appellant about his decision to flee Haiti while leaving his family behind in the same neighbourhood where they were attacked by the bandits. The Appellant responded that while his family went to stay with his in-laws in the same neighbourhood, they would be safe because he is the principal target of the bandits who perceive him to be wealthy as a result of his employment with the government. [25] The RPD reached a negative inference from the Appellant's decision to flee Haiti while leaving his family behind. If the Appellant truly felt threatened by bandits as alleged, he would not have left his family behind in precisely the same neighbourhood where they were attacked by bandits. [26] I agree. While the Appellant says that his family will be safe in Haiti because he is the one who is the "main target" of the bandits, this statement is difficult to reconcile with his testimony that his 8-year old child was physically attacked by bandits during his absence from the home in XXXX 2017 which prompted his abrupt departure from Haiti. Moreover, the Appellant also testified that following his departure from Haiti, his wife received threatening phone calls from the bandits who explained that she was now being targeted since the Appellant is no longer in Haiti. [27] All things considered, the RPD did not err in finding that the Appellant's decision to leave his family behind in Haiti negatively impacted his credibility. Omission in the evidence [28] The RPD also noted a significant omission in the Appellant's BOC. While he testified that his wife has received threatening phone calls from bandits who stated that his wife is now being targeted given the Appellant's departure from Haiti, this information is not mentioned in his BOC. When given the opportunity to explain this omission at the RPD hearing, the Appellant testified that he forgot to mention the threatening calls that his wife received from the bandits but that he is mentioning it now, in his testimony. He added that he feels emotionally fragile which negatively impacted his testimony. [29] On appeal, Counsel concedes that the Appellant ought to have referenced ongoing threats from bandits directed at his wife in his amended BOC. This being said, it is submitted that the omission is not determinative of his credibility. [30] It is well established that the RPD is entitled to consider omissions in the evidence when assessing credibility. In contrast to his testimony, the Appellant failed to mention in his amended BOC that his wife is now the target of bandits who subject her to ongoing threatening calls. This omission is significant given that it strikes at the heart of his refugee claim which concerns his ongoing fear of bandits in Haiti in a context where there is a well-documented culture of revenge.5 [31] In short, the RPD did not err in reaching an adverse credibility finding as a result of a significant omission which is not well explained. Confused testimony regarding key events [32] The BOC states that the bandits came to the Appellant's home XXXX XXXX, 2010; XXXX 2010; XXXX 2013; XXXX 2016 and XXXX 2017. [33] In contrast, the RPD found that the Appellant provided confused and inconsistent testimony when he described the key events involving the bandits. Most notably: - While the BOC states that the bandits came to the Appellant's home a second time in XXXX 2010, the Appellant testified that the second incident took place in XXXX 2013. - Further in his testimony, he testified that the bandits presented at his home a third time in XXXX 2016. This is at odds with his BOC which states the third incident took place in XXXX 2013. [34] When challenged to explain discrepancies in his evidence, the Appellant explained that he is confused about specific dates that bandits came to his home when he was not present. He added that the dates indicated in his BOC are the correct dates. [35] The RPD found that the Appellant's explanation for the inconsistency strained credibility because the noted inconsistencies refer to encounters that the Appellant personally had with the bandits the second and third time that they presented at his home. [36] On appeal, Counsel concedes that her client was confused when he testified about when specific incidents involving the bandits took place. This being said, the RPD erred by reducing the hearing to a "memory test". Moreover, it is understandable that he had difficulty remembering dates stemming from traumatic events in Haiti. On the whole, the Appellant was able to recount his story in a manner consistent with his BOC. [37] I find this submission has no merit. [38] First of all, I agree that the RPD hearing is not meant to be a "memory test". In the present case, the RPD asked the Appellant to recount his experiences with the bandits. The discrepancies noted in his testimony regarding the chronology of events varied by months and years in comparison to the dates he provided in his amended BOC. [39] Secondly, while he says that he struggles to recall specific dates involving the bandits which took place at his home in his absence, the noted discrepancies regarding the second and third incident involving bandits occurred during a period when he says he was present in the home. [40] Finally, while the impact of trauma is complex, it is relevant to note that Counsel did not alert the RPD of any concern of this nature at the outset of the hearing. Moreover, there was no psychological assessment provided to support the assertion that the Appellant's ability to recollect incidents is negatively impacted by trauma. Conclusion regarding credibility [41] On the whole, the RPD determined that it is possible that the Appellant and his family were robbed by bandits in Haiti in 2010. This being said, the RPD found that the Appellant's evidence regarding subsequent encounters with bandits strained credibility given omissions and discrepancies in his evidence; confused testimony regarding key events; his decision to leave his family in harm's way in Haiti; his re-availment to Haiti on 4 separate occasions and his failure to make a refugee claim in the USA in XXXX 2017 which undermines the credibility of his subjective fear. [42] I find that the adverse credibility findings noted by the RPD are well supported by the evidence. On a balance of probabilities, the RPD did not err in finding that the Appellant's evidence lacked credibility. 2. The Appellant's fear of being personally targeted by bandits in Haiti based on the perception of wealth [43] An individual claiming to be a person in need of protection within the ambit of s. 97(1)(b) of the IRPA must prove on a balance of probabilities that he is personally subject to a risk to life or to a risk of cruel and unusual treatment or punishment in his country of nationality. Simply put, there must be evidence of a specific risk faced by the claimant personally, as opposed to an indiscriminate or random risk faced by the refugee claimant and others. [44] In the present case, the Memorandum of Appeal faults the RPD for failing to assess the Appellant's personalized risk against the objective situation in Haiti.6 This being said, aside from a broad statement, Counsel has not provided any details to explain this submission. [45] I note that during the RPD hearing, the Appellant asserted that he will be personally targeted by criminals as a Haitian returnee, based on the perception that he is wealthy. [46] My review of the evidence is compatible with the RPD who determined that the perception of wealth is not a particular risk faced by the Appellant but rather part and parcel with the general insecurity that reigns in Haiti.7 This issue was squarely addressed by the Federal Court in Prophète, which notes the following: "... [T]he applicant does not face a personalized risk that is not faced generally by other individuals in or from Haiti. The risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence."8 [Emphasis added] [47] Likewise, documentary evidence reveals that crime impacts everyone in Haiti. For example, one source notes that the insecurity that reigns in Haiti impacts everyone, including police officers, judges, lawyers, citizens exiting the bank, etc.9 [48] Aside from a generalized risk of crime based on the perception of wealth, the Appellant did not describe any other factors suggesting a personalized risk to life or a risk of cruel and unusual treatment or punishment if he returns to Haiti or that he would be personally subjected to a risk different than one faced by other Haitians. VII. REMEDY [49] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Patricia O'Connor Patricia O'Connor April 3, 2019 PO/dd 1 The Appellant also submitted an amended BOC. See Exhibits C-1, C-2, C-5. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras 78, 103. 3 Ibid, paras. 58, 59 and 70. 4 Maldonado v Minister of Employment and Immigration [1980] 2 FC 302 (CA). 5 NDP for Haiti, 20 October, 2017, Tab 7.3, Revenge committed by gangs or by other organized crime structures; capacity of gangs or other organized crime structures to trace their targets, including if the targets return to haiti after along absence (2014 - May 2015), 18 June 2015, accessed 29 June 2015. 6 Memorandum of Appeal, paras 11-12. 7 RPD decision, paras 29-33. 8 Prophète v Minister of Citizenship and Immigration 2008 FC 331. 9 RPD record, p 12, Rapport de mission en République d'Haiti du 26 mars au 7 avril 2017, France, Office Français de protection des réfugiés et apatrides, 15 September 2017, accessed 13 October 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-09359 4