MB4-05061

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. / No de dossier de la SAR : MB4-05061 MB4-05062 MB4-05063 MB4-05064 MB4-05065 MB4-05066 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Dates of hearing July 6, 2015 Dates de l'audience Appeal considered at Montréal, Quebec Appel instruit à Date of decision August 3, 2015 Date de la décision Panel Roxane Cyr Tribunal Counsel for the persons who are the subjects of the appeal Me Sabine Venturelli Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX; his wife, XXXX XXXX XXXX XXXX; and their children, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, are all citizens of Haiti and are appealing against the decision of the Refugee Protection Division (RPD) rejecting their claim for refugee protection. [2] XXXX XXXX XXXX was appointed as the designated representative of his children, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX. [3] The appellants are presenting new evidence and are requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [4] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that the appellants, XXXX XXXX XXXX; his wife, XXXX XXXX XXXX XXXX; and their children, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [5] The appeal is dismissed. BACKGROUND [6] The appellants fear that they will be killed by XXXX XXXX, alias XXXX, and staunch supporters of the government in power. [7] In XXXX2012, the male appellant, a XXXX XXXX XXXX, was allegedly targeted by XXXX XXXX, who XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand then supposedly hired a hit man to kill him. Instead of killing him, the hit man allegedly told the male appellant about the plot. The male appellant then supposedly filed a complaint against XXXX XXXX with the prosecutor's office. [8] After he learned about the plot, the male appellant was allegedly XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX thanks to XXXX XXXX, a XXXX named XXXX XXXX XXXX. He was appointed as head of legal services and allegedly left Haiti in XXXX 2012 to take up that role. [9] In XXXX 2013, the XXXX XXXX XXXX XXXX allegedly received death threats from members of the government in power because his political opinions differed from those of President Martelly and his supporters. [10] In XXXX, the male appellant also allegedly received death threats from the XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [11] Back in his country, staunch supporters of the government allegedly went to the male appellant's mother's home looking for his brothers, also XXXX, who purportedly fled and have since disappeared. [12] The female appellant, XXXX XXXX XXXX XXXX, had her laptop and purse stolen in Spain. [13] The XXXX XXXX XXXX XXXX relieved the male appellant of his duties on XXXX XXXX, 2013, and he was allegedly threatened at that time as well about his return to Haiti. [14] On XXXX XXXX, 2014, the appellants left Spain to come to Canada and, after being admitted with their visitor visas, claimed refugee protection on September 8, 2014. THE RPD DECISION [15] The RPD rejected the appellants' refugee protection claim and found that they were not credible. - The male appellant testified that he received threats directly from XXXX, but his Basis of Claim Form (BOC Form) makes no mention of it. - After receiving threats from XXXX, and despite the fact that the male appellant had taken steps to leave the country because of the situation, the appellants continued to live at the same address in XXXX XXXX XXXX XXXX XXXX instead of going into hiding and moving. In the RPD's opinion, that behaviour is inconsistent with the alleged fear. - In his BOC Form, the male appellant indicates that the main reason the government's staunch supporters wanted to harm him was because he attended a meeting with XXXX XXXX XXXX XXXX XXXX XXXX XXXX while he was working there and had called President Martelly a dictator, thus antagonizing the government in power. - The appellants did not seek asylum in Spain; however, they have felt since XXXX 2012 that their lives were in danger and they lived there from XXXX2012 to XXXX2014. - The female appellant, XXXX XXXX XXXX XXXX, travelled to the United States in XXXX2013 and returned to Spain that same month, but she did not seek asylum in the United States, which is inconsistent with the alleged fear. - The male appellant stated that he wished to return to Haiti after having received threats and been relieved of his duties. That is inconsistent with the male appellant's allegations that he fears for his life in Haiti and that he received death threats there. - The male appellant's explanations about why he did not want to seek asylum in Spain are inconsistent with the fact that the appellants waited one year before leaving the country and seeking international protection. - The male appellant failed to mention in his BOC Form that his cousin, XXXX XXXX XXXX XXXX, had encountered problems over a period of many months and not just on one occasion in XXXX 2013. - The male appellant failed to submit newspaper articles about his cousin's problems even though he knew those documents existed. - The male appellant allegedly spoke with his cousin one month before the RPD hearing but did not know if he was still having problems because he did not ask, which the RPD concludes is inconsistent. [16] Based on the preceding analysis, the RPD concluded that it did not believe the story or the fact that the appellants had encountered problems. GROUNDS OF APPEAL [17] Before the RAD, the appellants submit that the RPD erred in finding that the appellants were not credible and that it based its decision on irrelevant and non-determinative issues. [18] The appellants are of the opinion that the RPD should not have drawn negative inferences from the fact that they failed to mention that the male appellant had attended a meeting with XXXX XXXX XXXX XXXX at XXXX XXXX and had called President Martelly a dictator and that XXXX had threatened him directly. [19] In the appellants' opinion, they had already written in their BOC Form that the male appellant had had problems because of his cousin and his political opinion and the testimony simply provided details about the political problems. [20] In addition, the male appellant had indicated in his BOC Form that XXXX was responsible for the threats that were the reason for his departure from Haiti, which the RPD should have considered instead of drawing negative inferences from the fact that they failed to mention that XXXX threatened the male appellant directly. [21] In the appellants' opinion, the fact that they did not mention in their BOC Form that the male appellant's cousin, XXXX XXXX XXXX, had been having problems for many months is not a key point and the RPD should not base a lack of credibility finding on an element that is not central to the claim. [22] The male appellant submitted newspaper articles about his cousin's problems, thus establishing evidence of the facts that form the basis of his allegations on this point. [23] The RPD cannot blame the male appellant for his delay in leaving Haiti and the fact that he continued to live in XXXX XXXX XXXX XXXX XXXX before he left, despite the death threats that he received in XXXX 2012, because the male appellant was taking steps at the time to be able to leave the country. [24] The RPD cannot blame the appellants for not seeking asylum in Spain and conclude that this behaviour is inconsistent with the alleged fear because the female appellant, XXXX XXXX XXXX XXXX, was attacked there and was still traumatized. [25] The RPD cannot blame the appellants for their delay in leaving Spain, and it committed an error in rejecting the male appellant's explanation to the effect that he was waiting for his termination documents and that he had taken precautions to ensure their safety. [26] In addition, in the appellants' opinion, the RPD placed too great a weight on the details. As well, its analysis lacks logic and is not based on the evidence on record. ADMISSIBILITY OF NEW EVIDENCE [27] The appellants submitted the following new documents in support of their appeal before the RAD: A) prosecutor's certificate from XXXX XXXX XXXX XXXX XXXX; B) XXXX card belonging to the male appellant's brother, XXXX XXXX; C) XXXX card belonging to the male appellant's brother, XXXX XXXX XXXX; D) letter from the XXXX XXXX XXXX indicating that the male appellant's brother, XXXX XXXX, was relieved of his duties, dated XXXX XXXX, 2014; and E) letter from XXXX XXXX XXXX indicating that the male appellant was given severance pay when leaving his position as XXXX XXXX, dated XXXX XXXX, 2014; [28] Subsection 110(4) of the IRPA states the following: 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. [29] The RAD accepts document A as evidence because it was discussed during the RPD hearing and because the principal appellant had explained that he had taken measures while in the country but was unable to receive a copy. However, since the RPD decision was rendered, he has been able to obtain it. As well, this document is relevant because it has a direct nexus to one of the appellants' grounds for fear. [30] With respect to documents B, C, D and E, there is nothing in the appellants' memorandum to explain why these documents were not available during the course of the appellants' proceedings before the RPD or, if they were, why they were not presented at that time. Consequently, they are not admissible as evidence before the RAD. REQUEST FOR A HEARING [31] Pursuant to paragraphs 110(6)(a), (b) and (c), the RAD ordered that a hearing be held on July 6, 2015, in the presence of the appellants and their lawyer. THE RAD'S ROLE [32] The RAD is a newly constituted body that reviews RPD decisions. Its role remains to be clarified. The IRPA does not explicitly set out the standard of review and intervention to be applied in reviewing RPD decisions. [33] To date, the decisions of the Federal Court have established that the RAD is a "specialized (if not overspecialized) tribunal," see Alvarez,1 and that Parliament conferred "a true appellate function" on the RAD, "which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [34] In Alvarez,2 the Honourable Justice Shore expresses the opinion that "Parliament seems to have wanted to confer a broad power of intervention on the RAD, thus allowing the RAD to dispose of the merits of appeals and not only to determine whether the RPD's decision was made in a reasonable manner...". These appeals are not appeals de novo, and the RAD cannot hold a hearing unless new evidence is presented in accordance with subsections 110(3), 110(4) and 110(6) of the IRPA, which limits the scope of appeal that the IRPA confers on the RAD. Moreover, this is not a judicial review, whose sole purpose is to determine whether the RPD's decision was reasonable. [35] In Eng,3 Justice Shore expresses the opinion that the RPD, as the tribunal of first instance, is owed a measure of deference by the RAD with regard to its findings of fact, because the RPD is better situated, having seen and heard the claimant. However, the RAD must conduct its own assessment of all the evidence "in order to determine whether the RPD relied on a wrong principle of law or misassessed the facts to the point of making a palpable and overriding error" (Eng).4 [36] In Huruglica, Justice Phelan states the following: "In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion". [37] Thus, Huruglica recommends an approach where deference must be given to the RPD in the assessment of credibility, while conducting an independent assessment of credibility that is not limited to the "palpable and overriding error." With regard to the assessment of documentary evidence, the Honourable Justice Phelan is of the opinion that the RAD has expertise that is equal to or greater than that of the RPD "in the interpretation of country condition evidence. Unlike a court and the supervisory nature of judicial oversight, there is no reason for the RAD to defer to the RPD on this type of assessment."5 [38] In Spasoja, rendered after Huruglica, the Honourable Justice Roy puts forward a different opinion than that expressed by the Honourable Justice Phelan in Huruglica. He is of the opinion that the standard of review to be applied by the RAD must be that of the "palpable and overriding error" for questions of fact, that the RAD must show deference to the RPD's findings of credibility, and that the standard of correctness should be applied to questions of law. This conclusion is consistent with Alvarez and Eng. [39] In Alyafi,6 Justice Martineau is of the opinion that both approaches-the first explained in Alvarez, Eng and Spasoja (palpable and overriding error) and the second in Huruglica (described by Justice Martineau as a "composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a hybrid appeal" (Alyafi, para. 16))-can be applied as long as the question of the scope of the appellate review has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [40] It seems to me that the RAD must show deference to the RPD's credibility findings, as in Huruglica, given that the RPD had the opportunity to see, question and hear the appellant. [41] In its analysis, the RAD will consider all the evidence, including the appellant's testimony, and will conduct its own analysis while showing deference to the RPD's credibility findings. [42] The RAD will intervene only if it is of the opinion that the RPD's findings on questions of fact or of mixed fact and law are erroneous or are not supported by the evidence, in accordance with subsections 111(1) and 111(2) of the IRPA. For errors of law, the RAD will apply the correctness standard of review (Spasoja).7 ANALYSIS [43] The issue of credibility is central to the RPD's decision. [44] There are two aspects to the appellants' alleged fear. [45] The first pertains to their fear of XXXX XXXX, alias XXXX, and the second pertains to their fear of staunch supporters of the government in power under President Martelly. [46] The RPD concluded that their fear of XXXX XXXX was not credible. Having assessed the evidence, the RAD is of the opinion that the appellants' allegations on this point were not credible. [47] During his testimony, the male appellant testified that he had received death threats directly from XXXXin XXXX 2012 when he came to the entrance to XXXX XXXX XXXX. In his BOC Form, the male appellant makes absolutely no mention of the fact that XXXXhad ever directly threatened him, let alone that he had done so by going to the entrance of XXXX XXXX. [48] When questioned on that subject, the male appellant explained that it was how it had all been conveyed and that XXXXwas the main person responsible for the threats. The RAD is of the opinion that if the main person responsible for the threats had actually threatened him in person and was in front of XXXX XXXX XXXX, the male appellant would have included it in his BOC Form and his testimony, particularly given that this is why he allegedly went to file a complaint with the prosecutor against this individual. [49] That seriously undermines his credibility because this incident, if it actually occurred, would be the focal point of the male appellant's fear of XXXX and would have undoubtedly been included in his BOC Form. [50] Before the RAD, the male appellant explained how he obtained the document called ministry of justice and public safety, dated XXXX XXXX, 2014 (see the male appellant's record, page 29). It was sent to the RPD on November 18, 2014 (this document was sent to the RPD just after the decision was signed and was therefore not accepted). [51] The male appellant stated that it was Mr. XXXX, XXXX XXXX XXXX XXXX XXXX at the XXXX XXXX, who obtained the document. It was the male appellant and Mr. XXXX who XXXX XXXX XXXX complaint to the prosecutor together, and the male appellant signed the document. [52] The male appellant stated that he never received a copy of the complaint and, once he was in Canada in 2014, he asked Mr. XXXXto find the said complaint and send it to him. Mr. XXXXwas unable to find it in his files, so he allegedly requested the document called ministry of justice and public safety, dated November 11, 2014. [53] When asked how it was possible that he did not receive a copy of the complaint XXXX XXXX XXXX, the male appellant stated that he had not thought about it and that he believed that Mr. XXXX would have one. [54] When asked why Mr. XXXX was unable to find the complaint XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, the male appellant responded that it was because the XXXX XXXX XXXX XXXX did not have a computer and when they did any work that required a computer, they went to an Internet café. XXXX XXXX XXXX XXXX XXXX XXXX and they always did computer work at an Internet café. For that reason, there was no copy of the complaint because nothing had been saved. [55] The RAD does not accept that explanation because, in its opinion, the explanation was unreasonable and appeared to the RAD to be an improvised response. [56] The RAD does not believe the explanation to the effect that each time people from XXXX XXXX XXXX needed to work on a computer they had to go to an Internet café and draft texts XXXX XXXX there without saving a copy. [57] The RAD is of the opinion that if the male appellant had actually submitted a complaint to the prosecutor, and XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, he or XXXX XXXX XXXX, Mr. XXXX, would have a copy in their possession. [58] The male appellant told the RAD that he had filed a complaint and listed XXXXas the respondent. The RAD pointed out that XXXXis a surname, so how could he have filed a complaint and indicated a surname on an official document? The male appellant responded that he had filed two complaints, and the first one had the legitimate name; however, the prosecutor did not want to accept the first complaint with the legitimate name. That is why a second complaint was drafted, this time with XXXX's surname. This response seemed improvised to the RAD since nowhere is it written that the male appellant had to file two complaints with the prosecutor. [59] Later during the RAD hearing, the panel asked him why neither XXXX nor XXXX XXXX(legitimate name) was identified on the document from the ministry of justice and public safety, which was obtained subsequent to the complaint following the RPD hearing. Instead, it states that the complaint involved death threats from [translation] "unknown individuals" (see the male appellant's record, page 29). The male appellant responded that he knows that XXXX XXXX (alias XXXX) is now in charge XXXX XXXX XXXX XXXX XXXX XXXX-although the male appellant did not know exactly how long he has been there-and they did not want to identify him. Again, that seems to be an improvised response to the question. [60] That, combined with the fact that the male appellant's credibility was undermined because he did not mention in his BOC Form that he had received direct threats from XXXX, which was his reason for filing the complaint, leads the RAD to conclude that the appellants are not credible with respect to the first aspect of their fear. Consequently, the RAD grants no probative value to the document called ministry of justice and public safety, dated November 11, 2014 (appellants' record, page 29). [61] With respect to the second aspect of their fear, related to the male appellant's functions XXXX XXXX XXXX XXXXin Spain, the RAD is of the opinion that the RPD's analysis was appropriate. [62] The male appellant failed to include a central fact in his BOC Form, and his credibility is therefore seriously undermined. [63] The male appellant testified before the RPD that he attended a meeting with XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Spain and spoke out publicly against President Martelly, stating that if the President did not respect democratic timelines, he would consider the President a dictator. [64] It is difficult to imagine a situation where the male appellant, XXXX XXXX XXXX Martelly government to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, would make such comments. The male appellant stated during his testimony that it was because of that incident that he was then identified as an enemy of the government. [65] However, the fact remains that the male appellant did not include that incident in his BOC Form. He explained to the RPD that it was because he did not have enough room on his BOC Form and that he had indicated that he was in danger because of his political opinion. [66] The RAD is of the opinion that the male appellant is not credible and that if he had actually been identified as an enemy of the government because of his political opinion, he would have written about the incident and the fact that it was the root cause of his problems with the government. [67] In addition, the male appellant contradicted himself. In his BOC Form, he writes that he was targeted as an enemy of the government because of his political opinion, since his cousin is a XXXX who XXXX XXXX XXXX with the Martelly government. During his testimony, the male appellant stated that his comments in front of XXXX XXXX XXXX XXXX XXXX XXXX XXXX were the reason for his problems. [68] Because of that, the male appellant is not credible with respect to his problems related to political issues. [69] The RAD is of the opinion that the RPD's decision is consistent and intelligible, that it is based on inferences drawn from omissions and inconsistencies, and that it is based on the evidence. [70] In light of the negative inferences drawn by the RPD with respect to credibility, which the RAD concludes are fundamental and determinative for the appellants' story, the RAD is of the opinion that the RPD rendered the appropriate decision and did not commit an error. REMEDY [71] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX; his wife, XXXX XXXX XXXX XXXX; and their children, XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, are not "Convention refugees" within the meaning of section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [72] The appeal is dismissed. Roxane Cyr Roxane Cyr August 3, 2015 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702, para. 28. 2 Idem, para. 23. 3 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711. 4 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711, para. 33. 5 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799, para. 38. 6 Alyafi v. Canada (Minister of Citizenship and Immigration), 2014 FC 952, para. 46. 7 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File Nos. / Nos de dossier de la SAR : MB4-05061 MB4-05062; MB4-05063; MB4-05064; MB4-05065; MB4-05066 14 RAD.25.02 (2014.09.11) Disponible en français