MB5-03324

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 : MB5-03324 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 Montréal, Quebec Appel instruit à Date of decision March 9, 2016 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Jeffrey Platt 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 [1] The appellant, XXXX XXXX-XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim by determining that he is not a "Convention refugee" or a "person in need of protection" within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant is requesting that the Refugee Appeal Division (RAD) allow the appeal, set aside the RPD's determination and refer his file to the RPD for a hearing before a differently constituted panel.1 [3] The appellant submitted an affidavit from his sister as new evidence within the meaning of subsection 110(4) of the IRPA. [4] The appellant is requesting a hearing before the RAD. [5] The Minister did not intervene on appeal. DETERMINATION OF THE APPEAL [6] Under subsection 111(1) of the IRPA, the RAD confirms the RPD's determination, that is, that XXXX XXXX-XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [7] The appeal is dismissed. FACTUAL BACKGROUND [8] The appellant is originally from Port-au-Prince. He arrived in Canada with a student visa on January 4, 2014. He claimed refugee protection on March 30, 2015. [9] In the Basis of Claim Form (BOC Form), he alleges that, during the night of XXXX XXXX, 2009, while he was at home, unidentified criminals kidnapped him, brought him to an unknown location and threw him into a small room. During his kidnapping, the criminals stated [translation] "little OPL, we've been looking for you for a long time," that he was part of the students. They made him contact his father to pay a ransom of US$100,000 for his release. While forcibly confined, he was struck and questioned about the OPL political party. The following evening, he managed to flee and hid at the home of a friend. [10] On XXXX XXXX, 2009, he contacted the police to inform them of his problem, but his efforts were in vain. He contacted his father to tell him that he had fled and he lived in hiding (marronnage) because of the threats against him. He states that, initially, he lived between Port-au-Prince and XXXX XXXX to escape the threats against him. Then, he hid in XXXX, where he allegedly stayed in various houses. [11] In XXXX 2009, a friend advised him to apply for a visa for Canada, which was rejected because of insufficient funds. In XXXX 2010, he applied for a student visa, which was approved. He arrived in Canada on January 4, 2011. [12] In Canada, he took steps to obtain a Certificat de sélection du Québec (QSC) [Quebec selection certificate]. He was informed that he would have to wait for his work permit, which he obtained in XXXX 2011. He reapplied for a QSC, but, on XXXX XXXX, 2015, he was informed that his application had been rejected because of a lack of documentation. Fearing that he would have to return to Haiti, he claimed refugee protection. [13] He alleged that, if he returned, he would have problems and his life would be threatened, he would be kidnapped or perhaps he would even be killed by criminals and the Chimères. He cannot obtain state protection in Haiti. He is still a member of the OPL and, because he has already been mistreated, the criminals could attack him again. Impugned decision [14] On June 15, 2015, the RPD rejected the refugee protection claim orally, concluding that the claimant had not established a serious possibility of persecution on one of the five Convention grounds, or that he would likely be personally subjected to one of the risks set out in section 97 of the IRPA. The RPD stated that the claimant's credibility was the determinative issue. Here are the factors noted by the RPD. - The RPD noted contradictions between his testimony at the hearing and his written statements as to how he escaped his kidnappers on the night of XXXX XXXX XXXX 2009; - The RPD noted inconsistencies between his testimony at the hearing and his written statements regarding the locations where he allegedly resided after fleeing his kidnappers. In particular, in the information provided in the IMM-5669 forms, the refugee protection claimant does not indicate that he resided in XXXX XXXX or XXXX; - The refugee protection claimant stated at the hearing that, before his kidnapping on XXXX XXXX, 2009, he was threatened over the telephone seven to eight times a day by the "Lavalas" over a three-week period. However, this information is missing from his BOC Form; - The claimant stated that he tried to file a complaint for kidnapping but that the police told him that they could not accept the kidnapping complaint because his family had not contacted them and he managed to flee his kidnappers without anyone's help. However, they could accept a complaint for theft. Because of the numerous errors in Exhibit P-6, the RPD did not attribute any probative value to this copy of a complaint to corroborate the incident; - The RPD drew a negative inference from the refugee protection claimant's behaviour. First, because, despite the numerous threats against him, he did not try to leave Haiti and because he delayed claiming refugee protection in Canada. In this case, the claimant arrived in 2011 and did not claim refugee protection until four years later; - Finally, the RPD was of the opinion that it was unlikely that, six years after the alleged kidnapping and four years after the claimant left Haiti, his kidnappers are still looking for him. ADMISSIBILITY OF NEW EVIDENCE [15] The appellant attached to his memorandum documents that he numbered 1 to 4 as new evidence. The first three were presented as evidence before the RPD, and do not constitute new evidence within the meaning of subsection 110(4) of the IRPA. [16] With regard to document No. 4, an affidavit from his sister corroborating his kidnapping, the appellant, without providing any further explanations, submitted that it was not available before the rejection of his refugee protection claim. [17] Subsection 110(4) of the IRPA provides that 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. With regard to this provision, Justice Shore states in Iyamuremye2 that this refers to evidence "that might have affected the outcome of the RPD hearing if that evidence had been presented to it." [18] I reviewed the content of this affidavit, signed and dated in Montréal on August 5, 2015, by a woman named XXXX XXXX, who states that she is the appellant's sister, and the purpose of which is to corroborate the kidnapping on XXXX XXXX, 2009. [19] Although the affidavit is dated after the refugee protection claim was rejected, the appellant did not establish that this document respects the legislative requirements. In fact, in his memorandum, the appellant does not provide any detailed submissions explaining why his sister's affidavit was not available before the refugee protection claim was rejected. The Federal Court has stated that "The fact that the new evidence corroborates events, contradicts findings of the Board, and clarifies the evidence before the Board does not make it new evidence..."3 [20] For these reasons, I find that the affidavit is not admissible as new evidence within the meaning of subsection 110(4) of the IRPA. Holding a hearing [21] The appellant is requesting a hearing before the RAD. Appeals to the RAD are a paper-based process. As Justice Shore explains in Sajad,4 a hearing can only be held before the RAD when an applicant raises new documentary evidence as referred to in subsection 110(4) of the IRPA. In this case, the RAD cannot hold a hearing because it is of the opinion that the affidavit does not meet the requirements of subsection 110(4) of the IRPA. GROUNDS OF APPEAL AND REMEDY SOUGHT [22] The appellant submits that the RPD erred in assessing his credibility and the evidence presented, in particular: - The RPD erred by not attributing any probative value to Exhibit P-6; - The RPD did not take into account all the evidence and doubted that he went into hiding in XXXX XXXX and XXXX; - The RPD erred by drawing a negative inference regarding his credibility because of the fact that, in the BOC Form, he mentions that he fled down a hallway when, at the hearing, he stated that he escaped through a window; - The RPD did not consider the particular circumstances of his case when it concluded that, because of the delay in claiming refugee protection, he did not establish the subjective aspect of his fear of persecution. RAD'S ROLE AND FUNCTIONS [23] On this topic, the appellant submits that the nature of the appeal before the RAD is different from a judicial review. The appellant described the two key lines of case law at the Federal Court regarding the role of the RAD, which must proceed with an independent assessment of the evidence, regardless of the line of case law followed.5 [24] The statutory requirements precisely indicate the allowable grounds for appeal,6 as well as its "remedial powers." Parliament allows the RAD to confirm the determination, to set it aside and substitute a determination that, in its opinion, should have been made, or to refer the matter to the RPD for re-determination, giving the directions to the RPD that it considers appropriate.7 [25] The Federal Court, in being called on to determine the appropriate type of review by the RAD of decisions rendered by the RPD, recognizes the RAD's "expertise" on refugee-related matters. The Court is of the opinion that broad powers are conferred by the IRPA, "thus allowing the RAD to dispose of the merits of appeals,"8 and states that "the idea that the RAD may substitute an original decision by a determination that should have been rendered without first assessing the evidence is completely inconsistent with the purpose of the IRPA."9 Although these observations have been shared by a number of justices, the Federal Court is faced with two key lines of case law. [26] According to the proponents of the first line of jurisprudence put forward by Justice Shore: [27] ...the RAD must be able to correct any error of law in a decision of the RPD or any palpable or overriding error in the findings of fact or the application of the law to these facts. ...10 Justices Roy and Leblanc agree that the "error must be palpable and overriding...to succeed on appeal."11 Justice Roy points out that, while an appeal before the RAD must be generous, "this does not mean that it will be an opportunity for a new trial or a reconsideration of the matter in its entirety."12 Justice Roy is also of the opinion that "[i]t will be on the basis of the record of proceedings before the RPD that the appeal will be heard based on the questions identified and raised, subject to the documentary evidence (subsection 110(3)) or evidence that is consistent with subsection 110(4)."13 [27] A different approach is proposed by Justice Phelan in Huruglica.14 According to Justice Phelan, the "RAD is required to conduct a hybrid appeal." It must "review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a 'Convention refugee' or a 'person in need of protection.' Where its assessment departs from that of the RPD, the RAD must substitute its own decision."15 [28] Regarding the deference that the RAD owes to the RPD's findings, Justice Phelan states that it may be justified to show "deference to a RPD's decision in a circumstance where a witness' credibility is critical or determinative." Nevertheless, when it comes to interpreting the documentary evidence on country conditions, Justice Phelan states that "there is no reason for the RAD to defer to the RPD on this type of assessment." [29] Having reviewed the Federal Court's decisions to date, it appears to me that the RAD, a tribunal specialized in refugee protection matters, must examine all the evidence to determine whether the decision is well founded in light of the evidence before the RPD and any additional evidence accepted by the RAD as new evidence under subsection 110(4) of the IRPA. When findings of fact or of mixed law and fact are erroneous or unsupported by the evidence, the RAD must intervene by one of the means set out in subsections 111(1) and 111(2) of the IRPA. [30] As for errors of law, Justice Shore states that "the RAD must be able to correct any error of law."16 MERITS OF THE APPEAL Credibility [31] The assessment of credibility is a complex question of fact in which the RPD enjoys considerable latitude as it sees and hears and refugee protection claimants and witnesses. Appeal tribunals have recognized its expertise in this area on a number of occasions.17 In this case, the RAD does not have this privilege. [32] I took into account all the evidence and the arguments presented, and I listened to the recording of the hearing in order to form an opinion on the merits of the refugee protection claim. I am of the opinion that the RPD rendered the appropriate decision. A series of factors cast doubt on the appellant's credibility. Here are the factors that appear to me to be determinative. Omission [33] The appellant stated at the hearing that, over the three weeks that preceded his kidnapping, he received seven to eight threatening calls a day. However, this fact is not included in the BOC Form. [34] In his memorandum, the appellant admits that, indeed, this fact is not specifically indicated in the BOC Form. However, he argues that, by reporting in the BOC Form the words of his kidnappers, who stated: "little OPL, we've been looking for you for a long time," this encompasses those threatening calls. He points out that the member erred by not considering that his attackers had been looking for him for a long time.18 [35] With respect, I cannot accept this awkward argument that the RPD did not consider the evidence. It should be pointed out that, at the hearing, when the appellant was asked to explain the omission of these threats in the BOC Form, this is not what he stated. First, he stated that he was not asked this question, then he responded that it was a detail. Finally, he changed his testimony to state that he did not think of it and that there was not enough space to write it down. [36] The RPD was correct in stating that this is a major omission. The case law recognizes that the RPD is entitled to consider the contents in the PIF and draw negative inferences about the credibility of a refugee protection claimant if matters considered important were omitted.19 [37] Moreover, if he were threatened as many times prior to his kidnapping as he stated, I have difficulty believing that he forgot to mention it. His credibility is seriously undermined. Complaint, Exhibit P-6 [38] In the BOC Form, the appellant states: [translation] "On XXXX XXXX XXXX 2009, I called the police to inform them of the situation but they did not help me."20 At the hearing, he stated that he tried to file a complaint with the police but that they informed him that they could not accept a complaint for kidnapping because the family members had not reported his kidnapping and because he had escaped his kidnappers without anyone's help. However, they allegedly accepted a complaint for theft. The claimant submitted Exhibit P-6 to corroborate this complaint.21 [39] In light of the numerous errors contained in Exhibit P-6, the RPD did not attribute any probative value to it. [40] The appellant admitted that the document filed under P-6 contains errors. However, he pointed out that the RPD erred by not attributing any probative value to the document, and that it did not take into account that it was a complaint accepted by the police force of a third world country and was not prepared by the appellant. He added that the RPD recognized that it is possible for a document to contain an error without its probative value being compromised. [41] I am of the opinion that Exhibit P-6 does not make it possible to establish the alleged facts. It is possible for a document to contain errors and for its value not to be compromised to a certain degree. However, as noted by the RPD, there are many errors. [42] The complaint is dated XXXX XXXX, 2009, for a theft that occurred on XXXX XXXX XXXX 2005. However, the claimant alleges that he was kidnapped on XXXX XXXX XXXX 2009, from his home, and that he filed a complaint the day after he fled, that is, on XXXX XXXX, 2009. The theft to which the complaint refers allegedly occurred on the street, four years earlier, in XXXX 2005. The errors in the document are numerous and are so significant that it is not possible to give the appellant the benefit of the doubt. Exhibit P-6 cannot in any way be reconciled with his testimony and the facts that he is trying to establish. [43] I add that, in the BOC Form, the appellant gives another version of the facts. He does not indicate that he went the police station in person but, rather, that he telephoned. Furthermore, he does not state that a complaint was accepted for theft. [44] In a context in which the documentary evidence states that, in Haiti, it is easy to obtain false documents, these factors, taken as a whole, contribute to serious doubts about the claimant's credibility.22 Places of residence [45] The appellant stated that, because of the threats weighing against him in Port-au-Prince, he went into hiding in XXXX XXXX and then in XXXX. According to the statements in the account, he lived in XXXX for a number of months. However, the IMM-5669 form does not mention any address in XXXX XXXX or XXXX and indicates that the appellant had always lived at the same address in Port-au-Prince.23 [46] The appellant claims that the RPD erred by drawing a negative inference and did not consider that he had resided at different addresses. [47] With respect, I do not share this perspective. The Federal Court has recognized: The Commission may draw negative inferences from a contradiction between the PIF and the claimant's testimony for which no satisfactory explanations were provided.24 [48] The completed documents are totally silent regarding the fact that he resided in XXXX XXXX and XXXX. In the circumstances, there is reason to have serious doubts. Delay in claiming refugee protection [49] The appellant arrived in Canada on January 4, 2011, and claimed refugee protection on March 30, 2015. The RPD took into account that the appellant claimed refugee protection four years after he arrived in Canada. [50] On this topic, relying on the various decisions rendered by the Federal Court, the appellant argued that the RPD erred when it concluded that the delay in claiming refugee protection shows a lack of subjective fear and that it did not take into account the particular circumstances of his case, that is, that he had legal status in Canada. [51] The RPD certainly took into account his explanations and the particularities of his case as it supported its reasoning with Peti, Qamille,25 a decision in which the Court recognizes the fairness of the Minister's argument that possession of a visa does not rebut the presumption that a true refugee would claim protection at the first opportunity. [52] Finally, it should be noted that, in this case, the RPD did not take into account this factor alone. This adds to the other factors that have already been noted. [53] In Huerta, the Federal Court states that: The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant. [54] Therefore, although the delay in claiming refugee protection is not in itself determinative in terms of the validity of a refugee protection claim, it is an important factor,26 especially since the appellant seemed to encounter some difficulties in regularizing his status and because, according to his allegations, his kidnappers are still looking for him. CONCLUSION [55] For these reasons, having reviewed all the evidence and taken into account the appellant's arguments, I am of the opinion that the RPD rendered the appropriate decision. The decision is neither perverse nor capricious and takes into account jurisprudential principles. [56] Consequently, the RAD confirms the RPD's determination, that is, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [57] The appeal is dismissed. Maria De Andrade Me Maria De Andrade March 9, 2016 Date IRB translation Original language: French 1 Appellant's memorandum, page 22. 2 Iyamuremye v. Canada (Citizenship and Immigration) 2014 FC 494. 3 Indradei Parrasram Dhrumu v. Canada (Citizenship and Immigration), 2011 FC 172. 4 Sajad v. Canada (Minister of Citizenship and Immigration) 2014 FC 1209. 5 Appellant's memorandum, page 21. 6 Subsection 110(1) of the IRPA: Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. 7 Subsection 111(1) of the IRPA. 8 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 9 Idem. 10 Eng v. Canada (Minister of Citizenship and Immigration), 2014 FC 711; Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702. 11 Spasoja v. Canada (Minister of Citizenship and Immigration), Justice Roy, 2014 FC 913; Lamia Aloulou v. Canada (Minister of Citizenship and Immigration), 2014 FC 1236. 12 Spasoja v. Canada (Minister of Citizenship and Immigration), 2014 FC 913. 13 Idem. 14 Huruglica v. Canada (Minister of Citizenship and Immigration), 2014 FC 799. 15 Idem. 16 Supra, footnote 10. 17 Augebor v. Canada (M.E.I.), (1993) 160 N.R. 315 (F.C.A.), P.L. Benchetrit, 2010 QCCA 1505. 18 Appellant's memorandum, page 15. 19 Kutuk v. Canada (Minister of Citizenship and Immigration), No. IMM-2484-94; Basseghi v. Canada (M.E.I.), [1994] F.C.J. No 1867 (T.D.) (QL). 20 RPD record, page 15. 21 RPD record, page 120. 22 National Documentation Package on Haiti dated June 27, 2014; Tab 9.1. Haiti: Types of complaints that victims may file with the police; procedure for obtaining a document certifying that a complaint was filed; description of such a document and whether it must be signed by a judge. Immigration and Refugee Board of Canada, June 9, 2014. Idem, Tab 10.4, The Haitian National Police (Police nationale d'Haïti, PNH), including its effectiveness, reform, and the reliability of reports issued by the police and justices of the peace; whether there is an authority that handles complaints about the police (2010-May 2013). Immigration and Refugee Board of Canada. June 13, 2013. 23 RPD record, page 87. 24 Grinevich et al. v. M.C.I., No. IMM-1773-96; Pinon v. Canada (Minister of Citizenship and Immigration), 2010 FC 413; Tejeda v. Canada (Minister of Citizenship and Immigration), 2009 FC 421. 25 Petit Qamille v. Canada (Minister of Citizenship and Immigration) 2012 F.C.82. 26 Cruz v. Canada (Minister of Citizenship and Immigration), [1994] F.C.A. No. 1247. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-03324 4 RAD.25.02 (2014.09.11) Disponible en français