MB8-04808

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 : MB8-04808 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 5 November 2018 Date de la décision Panel Me Patricia O'Connor 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 I. INTRODUCTION [1] XXXX XXXX XXXX (the Appellant), a citizen of Haiti, appeals a decision of the Refugee Protection Division (RPD) rendered on January 26, 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 AND OVERVIEW [3] According to this Basis of Claim (BOC), the Appellant inherited his father's land after he passed away in 2004. For many years, the land was cultivated by the farm manager, XXXX XXXX. Each year, the manager handed over part of the crop to the Appellant's father and then the Appellant. This arrangement lasted for several years, without incident. [4] On XXXX XXXX, 2015, the Appellant got into a dispute with the farm manager who claimed to be the rightful owner of the land. On XXXX XXXX, 2015, the situation further escalated to the extent that the Appellant was attacked by the manager and his acolytes. During this altercation, the Appellant was shot in the arm and his condition was documented by the Justice of the Peace. He spent around one XXXX in the hospital and the National police did nothing to assist him. [5] As a result of his problems with the farm manager, the Appellant left Haiti and travelled to the Bahamas on XXXX XXXX, 2016. He then made his way to the United States where he arrived on XXXX XXXX, 2016. Crossing through the woods almost one year later, he arrived in Canada on XXXX XXXX, 2017 and made a refugee claim. [6] The RPD rejected the claim, finding that it lacked credibility based on several inconsistencies and a lack of corroborating evidence. The Appellant's delay in claiming asylum in the USA was found to undermine the credibility of his subjective fear. IV. DETERMINATIVE ISSUE [7] The determinative issue is whether the RPD erred in the assessment of credibility. V. REQUEST FOR A HEARING [8] While the Appellant requests an oral hearing before the RAD, he did not submit new evidence on appeal. This, in itself, is a bar to an oral hearing in the present case.1 VI. SCOPE OF THE RAD APPEAL [9] 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 state below, I have applied the correctness standard in the present case. VII. ANALYSIS The RPD did not err in finding that the Appellant's evidence lacked credibility [10] The RPD identified inconsistencies in the Appellant's evidence regarding central aspects of his story: - When initially asked by the RPD to indicate when his problems in Haiti began, the Appellant stated XXXX XXXX, 2015. Further in his testimony, he stated his problems first started in XXXX 2016. When challenged to explain this inconsistency, the Appellant was noted to adjust his testimony, reverting to XXXX 2015. The RPD reached a negative inference from the Appellant's adjusted testimony. - When asked to explain when his next problem occurred in Haiti (ie the attack resulting in a gunshot wound), the Appellant initially stated 2012. When it was pointed out to him that this date is illogical, he changed his testimony stating that the next attack arose in 2016. Moreover, when pressed to provide an approximate time frame when this second attack occurred, the Appellant's evidence was unclear. At first he stated that the attack occurred one year before leaving Haiti but then further in his testimony, he stated that it occurred 5 months prior to his departure. The RPD reached a negative inference from this discrepancy. - The Appellant said that he was hospitalized after sustaining a gunshot wound. His BOC mentions that he was hospitalized for XXXX days. In contrast, he testified that he spent XXXX days in the hospital. When this discrepancy was pointed out to him, he adjusted his testimony, adding that he had follow-up medical appointments after his XXXX XXXXday hospitalization. [11] On appeal, Counsel concedes that aspects of the Appellant's evidence were inconsistent but argues that his client offered reasonable and plausible explanations for the inconsistencies. It is submitted that the Appellant has the right to correct himself when he testifies. [12] It is well established that inconsistencies in a refugee claimant's evidence can be relevant to the assessment of credibility if they are real and central to the claim.4 In this case, there were a number of inconsistencies in the Appellant's own evidence which were not adequately explained. While I agree that the RPD would be remiss to conflate the importance of one minor inconsistency, this is not the factual presentation of the present case. Rather, the inconsistencies noted in the Appellant's evidence pertain to key events leading up to his decision to flee Haiti. In my view, the RPD did not err in finding that a series of inconsistencies regarding core facts underpinning his claim negatively impacted the believability of his story. [13] It is important to note that after identifying inconsistencies in the evidence, the RPD considered the totality of the evidence in order to assess the overall impact of the identified inconsistencies on the credibility and reliability of his story. The RPD identified further credibility concerns which are unchallenged on appeal and well supported by the evidence. I turn now to consider these additional concerns. [14] Prior to the hearing, the RPD sent a letter to the Appellant asking him to provide supporting evidence demonstrating that he owned the land subject to the dispute and that he obtained medical care following the gunshot injury to his arm. The Appellant was also asked to provide copies of any police complaints that he made in connection to his problem with the farm manager. [15] The Appellant failed to provide any of the requested information to the RPD. The Appellant explained that he made contact with his cousin in Haiti so that he could send him the requested documents. However, his cousin responded that his uncle, who is in possession of all the documents, is in the Dominican Republic. When asked if he requested that his uncle forward the documents to him for the purpose of his refugee claim, the Appellant stated that his uncle could not do so as he is not yet back in Haiti. When pressed to explain why his uncle could not send the documents, the Appellant adjusted his testimony, stating that some of the documents were in Haiti and some were in the Dominican Republic and only his uncle could sort through the papers. The Appellant's explanation for his inability to obtain these supporting documents is nebulous, further impacting the credibility of his evidence. [16] Finally, the RPD also considered that the credibility of the Appellant's subjective fear was undermined, given that he did not immediately take steps to regularize his status in the USA. The Appellant explained that he was initially detained when he arrived in the USA. Following his release, he was under the impression that he could not make a refugee claim. When he finally consulted a lawyer more than one year after his arrival, he was informed that he was too late as such a claim must be done within the first year of arrival. Based on the facts of this case, I agree with the RPD who found that the Appellant's delay in taking steps to regularize his status was not well explained and further negatively impacts his credibility. [17] On the whole, the RPD did not err in finding that a series of inconsistencies pertaining to core facts underpinning his refugee claim, along with an absence of supporting evidence and his delay in seeking asylum, undermine the believability of his story. VII. REMEDY [18] In conclusion, I have independently analyzed the record, considered the Appellant's arguments and reviewed the RPD decision. I find that the RPD did not commit any errors in its assessment of the evidence and was correct to reject the Appellant's refugee protection claim. [19] For all these reasons, I confirm the decision of the RPD in accordance with ss. 111(1)(a) of the IRPA, namely that the Appellant is neither a Convention refugee nor a person in need of protection. The appeal is dismissed. Patricia O'Connor Me Patricia O'Connor November 5, 2018 Date PO/dd 1 See ss 110(3) and 110(6) of IRPA. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paras 78, 103. 3 Ibid., paras. 58, 59 and 70. Three Member panel RAD decision TB6-03419, May 17, 2017, as amended May 23, 2017, paras 70, 71, 116(b); X(Re), 2017 CanLII 33034 (CA IRB). 4 Cooper v Canada (Minister of Citizenship and Immigration), 2012 FC 118, paras 3-4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-04808 2