MB8-26034

RAD File No. / No de dossier de la SAR : MB8-26034 MB8-26035 / MB8-26036 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision June 28, 2019 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the persons who are the subject of the appeal Me Gisela G Barraza Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellants, XXXX XXXX and XXXX XXXX, citizens of Haiti, and XXXX XXXX XXXX, a citizen of the United States, are appealing against the Refugee Protection Division (RPD) decision rejecting their refugee protection claim for lack of credibility. [2] I find that the appellants are not credible and dismiss this appeal. FACTUAL BACKGROUND [3] The appellants allege that they fear a gang of criminals known as the "17 Euros" that has ties to the PHTK political party. The male appellant alleges that on XXXX XXXX, 2014, he became XXXX of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) [Croix-des-Bouquets youth association], whose purpose was to share their ideas about the political situation of Jean-Charles Moïse of the Pitit Dessalines party. He alleges that he refused a sum of money offered to him by the gang as an incentive to work for the PHTK party. Fearing for his life, the principal appellant left Haiti on XXXX XXXX, 2014, and arrived in Brazil in XXXX 2015. The male appellant indicates that he met his spouse in Brazil, who states that she arrived there in XXXX 2013. During his time in Brazil, the principal appellant allegedly heard that four of his aggressors were in Brazil. Fearing for their lives, the principal appellant and his spouse left Brazil in XXXX 2016 and arrived in the United States in XXXX 2017. During their time in the United States, the female appellant gave birth to their minor daughter. Fearing deportation by the US authorities, the appellants crossed the Canadian border illegally on XXXX XXXX, 2017. In their amended Basis of Claim Form (BOC Form) filed on September 7, 2018, the female appellant states that she was physically and sexually assaulted by an armed unknown man in late April 2013. That incident is what apparently led to her decision to leave Haiti. The male appellant states that he became XXXX of the association (XXXX) on XXXX XXXX, 2013. The Minister intervened in the appellants' refugee protection claim, raising the issue of exclusion. I note that the Minister did not intervene on appeal. ISSUES ON APPEAL [4] In my opinion, the only issue to be determined in this appeal is the following: Did the RPD err in assessing the appellants' credibility? ROLE OF THE REFUGEE APPEAL DIVISION [5] The Refugee Appeal Division (RAD) must determine whether the RPD's decision is correct,1 except in cases where the credibility of oral evidence is at issue and the RPD enjoys an advantage, in which case the RAD must assess the findings using a standard of reasonableness, modified to its specific context. I have carried out an independent assessment by reviewing the evidence before me, listening to the hearing recording, and applying the standard of correctness. REFUGEE PROTECTION DIVISION FINDINGS [6] The RPD found that the appellants, XXXX XXXX and XXXX XXXX, are not excluded under Article 1E of the Convention and the Minister did not dispute that finding. [7] The RPD noted contradictions and inconsistencies in the appellants' testimony: * The male appellant lacked knowledge about certain important aspects pertaining to his association. * There was a contradiction concerning the date on which the Pitit Dessalines political party was established and a lack of knowledge about the campaign and election dates. * The male appellant's brother, XXXX XXXX, was not listed in response to question 5 in his BOC Form. * The RPD gave no probative value to the death certificate or the excerpt from the peace court minutes. * The principal appellant fails to mention in his written account that he twice ran into one of his agents of persecution in Brazil. * There is a lack of prospective risk. * There is a lack of fear for the minor child in Haiti and the United States. GROUNDS OF APPEAL [8] The male appellant argues that the RPD's analysis concerning the implausibilities noted in his testimony was limited. [9] The male appellant argues that the RPD unreasonably found that his credibility was undermined for the following reasons: * The spelling of his association's acronym (AJPDC). * His failure to join the Pitit Dessalines party while he was president of the association in question. * His lack of knowledge about the campaign and election dates. [10] The male appellant raises an interpretation issue that prevented him from understanding the RPD's questions and states that he tried to answer them as best he could through an interpreter. [11] The male appellant maintains that his testimony and that of his spouse specify real fears specific to their situation. ANALYSIS Implausibilities [12] In his appeal memorandum, the male appellant raises implausibilities noted by the RPD. Respectfully, after reading the decision and listening to the hearing recording, I note that none of the RPD's negative findings regarding the appellant's credibility are based on implausibilities. I reject the male appellant's argument. Failure to mention that one of the criminals was in Brazil [13] Although uncontested by the male appellant, I note that he stated that he twice saw one of his aggressors in Brazil. When confronted with this omission in his written account, the male appellant responded that he forgot to mention it. In his written account, the male appellant alleges the following: [translation] "A few months later, I heard that four of my aggressors were in Brazil. My wife and I were then forced to leave Brazil." [14] I note that the appellant alleges that he left Brazil because he had heard that his aggressors were in the country. At the hearing, he instead claimed that he left Brazil because he had twice seen one of his aggressors. When confronted with this contradiction, the male appellant had no explanation. I find that this undermines the male appellant's credibility. "XXXX" association [15] The male appellant alleges that the criminals from the 17 Euros gang want to harm him because he was president of the XXXX. When asked to explain what the acronym stood for, he responded as follows: "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX." At the beginning of the hearing, the male appellant stated that he was president of the "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX" and he later twice confirmed the association's name. When confronted with his membership card, which has the association's name as "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX" [XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX], he explained that he may have been confused because it was indeed the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The RPD confronted him with his "Schedule A" immigration form, which makes no mention of his being a member of any organization, and the appellant stated that he had not understood the question that way. [16] The RPD found that the appellant adjusted his testimony and made a negative finding as to his credibility. [17] The appellant argues that the RPD was unreasonable in finding that his credibility was undermined because it failed to consider the principle established in X (Re), 2016 CanLII 1105303 (CA IRB). [18] I note that when asked about what the association's "XXXX" acronym stood for, the male appellant responded that it stood for "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX." [19] The male appellant states that he was confused in his response regarding the acronym's meaning. I took into consideration some of the difficulties that a refugee protection claimant may face in the hearing room, such as the claimant's level of education and background, cultural factors, the hearing room environment, and the stress of having to respond to oral questions through an interpreter. I note that the male appellant completed his BOC Form and his written account with the help of counsel, and yet, in his testimony, he used the same terminology that is in his written account and that reads as follows: [translation] "... I became president of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX)...." [20] The male appellant alleges to have forgotten to include the word "développement." I also note that, besides this oversight, the male appellant states "jeunesse" instead of "jeunes." I am of the opinion that the explanation provided by the male appellant is unjustifiable because of the fact that he alleges to have been the XXXX of the association in question since XXXX XXXX, 2014, and a member of that same association since 2012, and yet he made a mistake on the most trivial of details, namely, what the acronym stood for, both in his written account and in his testimony. I find that the RPD did not err. [21] When the panel asked him what exactly this association is, the male appellant replied that it is a youth association that supports the Pitit Dessalines opposition party. When asked why he did not become a member of that party, he stated that he supported Pitit Dessalines, but not the PHTK. When the panel asked the question again because he had not answered it, he stated that they were a committee of young people that supported only the Pitit Dessalines party. The RPD again asked why he did not join the party instead of the association, if the association's sole purpose is to support the party, and he replied that they supported the party because it advocated for young people. The RPD noted that the male appellant failed to answer the question and it was only when it asked him whether he had ever considered becoming a Pitit Dessalines member that he responded no, because it did not interest him. [22] The RPD found that this manner of testifying, where questions need to be repeated and where the claimant cannot elaborate further on the reasons for his actions, undermines his credibility. [23] The male appellant argues that he was not president of that association because of its political ties, but because it was an association that advocated for young people. He maintains that it was unreasonable to find that his credibility was undermined by the fact that he was not interested in joining the Pitit Dessalines party. He also argues that he did not understand the questions and that he tried to answer them as best he could through an interpreter. [24] The male appellant states that the association concerned itself solely with the interests of young people. However, I note that the male appellant's initial and amended accounts state the following: [translation] "The purpose of our association was to share our ideas about the political situation of Jean-Charles Moise, namely, Petit Dessalines.... I used to criticize President Michel Joseph Martelly." According to the evidence on the record, the association in question represented the interests of the Pitit Dessalines party and it was allegedly involved, on a balance of probabilities, in the party's political sphere. [25] I note that the RPD more than once asked why the male appellant did not join the party in question. In my opinion, this was not an interpretation issue, as alleged by the male appellant, because the question was short, simple and clear enough. The male appellant could have simply indicated that he did not understand the question, as needed, as he had done at other times during his testimony, in order for the RPD to rephrase it in an even simpler way. I consider that the male appellant's hesitation in responding to those questions undermines his credibility and I agree with the RPD's finding. Establishment of the Pitit Dessalines party [26] When asked why he decided to join the XXXX, the male appellant explained that he had heard about how the association advocated for young people. When asked whether, since his arrival, the association represented the interests of Pitit Dessalines, he replied yes. When the RPD asked him to confirm that the XXXX has been supporting Pitit Dessalines since at least 2012, he confirmed this. When confronted with the information in the National Documentation Package (NDP) on Haiti2 indicating that the party was founded in 2014, when he had just stated that his association has been defending that party's interests since 2012, he responded that Pitit Dessalines was not founded in 2014. When the RPD referred to the evidence clearly stating that the party was founded in December 2014 and that its first congress was held in February 2015, the male appellant denied everything. When asked to explain how it defended the interests of that party, which did not exist at the time, he stated that the party was already registered but that it had another symbol. When asked about that symbol, he stated that he could not remember it. [27] The RPD found that the male appellant was trying to adjust his testimony when confronted with the evidence that he could not have supported a party that did not yet exist. The panel is of the opinion that this does not hold water and that it considerably undermines the male appellant's credibility. [28] Although uncontested by the male appellant, I note that he filed no evidence in support of his refugee protection claim to confirm that the Pitit Dessalines party had existed under another symbol since at least 2012. With no such evidence, I consider that the male appellant failed to establish, on a balance of probabilities, that the party existed in 2012 under a different symbol than the current one and I give greater weight to the information in the NDP indicating that the party in question was founded in 2014. I am of the opinion that the RPD's finding is correct. XXXX XXXX [29] The male appellant amended his written account to add that he became XXXX of the XXXX in November 2013. Confronted with that date, given that he stated at the hearing that he had become XXXX of the association on November XXXX, 2014, he responded that he became XXXX in November 2014. When the RPD asked him why he would have made an amendment to add that he became XXXX in November 2013, he replied that he had said to put November 2014. [30] The male appellant stated that he was the association's president for two months. When asked to recount when the problems started, he stated November 1, 2014, when he became president. He added that they used to meet every 15 days and that one day, during one of those meetings, members of the PHTK arrived and offered them money to work with them. When asked about the date on which the meeting was held, he replied October XXXX, 2014. When asked whether he was already XXXX of the XXXX at that meeting, he answered yes. When confronted with his statement that he became XXXX of the association on November XXXX, 2014, he replied that the incident in question happened after he had become XXXX. When the RPD asked him whether he was XXXX at the time of the meeting on October XXXX, 2014, he replied no. [31] The RPD found that the contradictory testimony regarding the date on which the male appellant became president and the date on which his problems began undermined the male appellant's credibility. [32] Although uncontested by the male appellant, I agree with the RPD's reasoning and the finding made regarding his credibility. I would like to add that the appellant contradicted himself on central elements that are at the core of his refugee protection claim. I conclude that the RPD's finding is correct. Threatening calls [33] The male appellant alleged that after he fled, his brother and mother received telephone calls for him. He stated that his mother allegedly received such calls for two years and that she mentioned the calls to him when they spoke on the telephone approximately every two months. When confronted with his written account, which mentions only one threatening call, he denied that his mother had received only one threatening call. [34] The RPD found that this contradiction undermined the male appellant's credibility. [35] Although uncontested by the male appellant, I find that he adjusts his testimony so as to embellish it. I agree with the RPD with respect to the finding made and I conclude that it is correct. Death of the male appellant's mother [36] The male appellant alleged that his mother was fatally shot on XXXX XXXX, 2016, at around 10:00 p.m. and that the police and the justice of the peace arrived on the scene around midnight and therefore declared her dead on XXXX XXXX, 2016. When asked what [translation] "twelve o'clock in the afternoon" means in his own language, he replied that he was not familiar with that way of telling the time. However, the co-appellant stated that it meant noon. When confronted with the excerpt from the report minutes, which states [translation] "twelve o'clock in the afternoon" and his testimony that the police and the justice of the peace arrived at midnight on the night of XXXX XXXX to XXXX XXXX XXXX 2016, the male appellant stated that it may be an error on the part of his brother. [37] When confronted with his mother's death certificate, which states that she died at 3 o'clock in the evening, to be understood as meaning 3 o'clock in the afternoon, on XXXX XXXX, the male appellant stated that he did not know and that is how they write. [38] In light of those discrepancies, the RPD gave no weight to those documents. [39] Although uncontested by the male appellant, with respect to the excerpt from the minutes, I note that he seems to want to put the blame on his brother. As for the death certificate, the male appellant offered no explanation. I am of the opinion that the male appellant's testimony contradicts the content of that evidence. I agree with the RPD's conclusion to give no weight to those documents and to make a negative finding regarding the male appellant's credibility. Prospective risk Gender-based risk [40] First, I wish to note that I considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution in this analysis.3 [41] The female appellant alleges that she fears returning to Haiti and being sexually assaulted again. She fears that her minor daughter would suffer the same fate if ever she had to return to Haiti. I note that the appellants' minor daughter is a citizen of only one country, the United States. [42] The RPD found that the documentary evidence does not demonstrate that there is a serious possibility that the female appellant would face such violence or that existing discrimination would amount to persecution within the meaning of the Convention, in their particular situation. The appellants also did not allege that the female appellants would be in the same situation as women in Cité-Soleil if the female appellants had to return to Haiti. [43] Although uncontested by the male appellant, in light of the objective evidence, I note that sexual and gender-based violence are problems in Haiti. Violence against women in that country is more closely related to factors that make women more vulnerable, including women living in rural areas, those who have been displaced within their own country or who are living in camps, women who are victims of domestic violence, including marital rape, disabled women, sexual minorities and pregnant women and girls.4 [44] I agree with the reasoning of the RPD, which provided a detailed analysis of the prospective risk, and I note that the appellants have numerous family members in Haiti, both on the side of the female appellant, who has both of her parents, four brothers and two sisters there, and on the side of the male appellant, who apparently has two brothers and a sister there. I note that the female appellant's situation is today strengthened by having her spouse with her and differs from her past situation. I note that the testimonial and documentary evidence on the record does not lead to a finding that the appellants would be unable to find a place to live with the support of their respective families. I conclude that the female appellant is not a member of any of the vulnerable groups listed above that would increase her risk of being subjected to gender-based violence in Haiti. [45] In Dezameau,5 the Federal Court states that membership in a particular social group is not sufficient to result in a finding of persecution. The evidence provided must still satisfy the decision-maker that there is a risk of harm that is sufficiently serious and whose occurrence is "more than a mere possibility." [46] I agree with the RPD's finding that the objective evidence does not demonstrate that there would be a serious possibility that the female appellant would face such violence or that existing discrimination would amount to persecution within the meaning of the Convention, based on their allegations. [47] Given that the female appellant failed to establish that she is a member of any of the groups of vulnerable women most likely to be subjected to gender-based violence, I am of the opinion that she failed to establish that the risk of gender-based violence in Haiti would be more than a mere possibility. I find that the RPD did not err in making that finding. Generalized criminality and diaspora [48] The appellants allege that they fear returning to Haiti and being kidnapped there, or that their daughter would also be kidnapped because of the fact that they lived abroad and would therefore be perceived as wealthy individuals. [49] The RPD found that the appellants failed to establish, on a balance of probabilities, that they would be personally subjected to the alleged risk of being kidnapped and physically assaulted at the same time, if they returned to Haiti. [50] The male appellant argues that the specific circumstances of each case must instead be considered separately, as well as in context. He argues that the RPD did not seem to apply that principle when it found that their fear instead stemmed from the generalized risk, when their testimony specified real fears specific to their situation. [51] I note that the Response to Information Request6 on the security situation in Haiti provides the following information on kidnappings: - Kidnapping victims are not targeted for their nationality, race, gender or age, and the number of kidnapping victims in the last few years "is spread fairly evenly" among men, women and children. - Anyone who is perceived to have wealth or family with assets in Haiti or abroad is vulnerable, with kidnappers targeting wealth. - Members of the general Haitian population, regardless of their social class, are at risk of being kidnapped. [52] In Prophète,7 the Federal Court states the following: "...While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming victims of violence." [53] In light of the objective evidence, I am of the opinion that the RPD's finding is correct. Minor child's fear [54] The appellants' minor daughter was born in the United States and is a citizen of that country. When asked whether their daughter was also Haitian, they replied no. They mentioned no particular fear for their minor daughter in Haiti, other than the one that they allege to have been victims of in the past and which they could also be victims of if they all returned to Haiti. They also allege that they fear their daughter could be subjected to sexual violence or crime, such as kidnapping. They stated that they would have no fear for their daughter's safety if she had to return to the United States, other than the fact that she would not be with her parents. They add that they have no faith in US social services, but did not explain further. [55] The RPD found that it was not established that the minor daughter would face persecution or would be subjected to a risk within the meaning of section 96 or subsection 97(1) of the Immigration and Refugee Protection Act (IRPA), if she had to return to the United States or Haiti. [56] Although uncontested by the male appellant, I note that the minor appellant is a citizen of only one country, the United States. She holds no right of establishment in other countries, which is why I am limiting the assessment of the minor appellant's prospective risk to her country of citizenship, especially when no evidence was filed in support of the appeal to demonstrate that the minor daughter has obtained Haitian citizenship. [57] The female appellant stated that her daughter has no one in the United States to take care of her. The male appellant stated that he fears for his daughter's safety, having no faith in the social services in the United States. I note that the appellants' allegations are limited to these two points, without any explanations or evidence being provided as to how their daughter's safety and health would be compromised in the United States. I am very sensitive to the fact that the appellants' possible separation from their daughter, if necessary, could be viewed as a heartbreaking situation; however, I note the lack of both testimonial and documentary evidence relating to either sections 96 or 97 of the IRPA. I find that the RPD did not err in its analysis of the fact that the appellants failed to establish that there is a serious possibility that their minor daughter would be persecuted on a Convention ground or that, on a balance of probabilities, she would be personally subjected to a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment if she had to return to the United States. CONCLUSION [58] For these reasons, after reviewing all the evidence, I am of the opinion that the appellants failed to establish that the RPD's decision is wrong. I am of the opinion that the RPD's decision is correct, as are its other uncontested findings. DECISION [59] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD, namely, that the appellants are neither "Convention refugees" nor "persons in need of protection." Toni Jedid Me Toni Jedid June 28, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLii). 2 National Documentation Package (NDP) on Haiti (March 29, 2019), Tab 4.19: The Pitit Dessalines [Pitit Desalin] political platform, including its establishment, structure, founding members and leaders, as well as its program; whether the platform issues membership cards... Immigration and Refugee Board of Canada (IRB). July 22, 2016. HTI105579.FE. 3 IRB. Guideline 4: Women Refugee Protection Claimants Fearing Gender-Related Persecution. Guideline issued by the Board pursuant to subsection 65(3) of the Immigration Act. Effective November 13, 1996. 4 NDP on Haiti (March 29, 2019), Tab 2.1: Haiti. Country Reports on Human Rights Practices for 2018. United States. Department of State. March 13, 2019. Ibid. Tab 5.1: Haiti. Social Institutions and Gender Index 2014. Organisation for Economic Co-operation and Development. November 28, 2014. Ibid. Tab 5.3: Violence against women, including sexual violence; state protection and support services (2012-June 2016). IRB. December 15, 2016. HTI105161.FE. Ibid. Tab 5.8: Gender Issues Facing Women and Girls. Bureau des Avocats Internationaux et al. January 22, 2016. Ibid. Tab 5.10: Concluding observations on the combined eighth and ninth periodic reports of Haiti. United Nations. Committee on the Elimination of Discrimination against Women. March 9, 2016. CEDAW/C/HTI/CO/8-9. Ibid. Tab 5.11: Submission on the combined eighth and ninth periodic reports of Haiti to the United Nations Committee on the Elimination of Discrimination against Women. Human Rights Watch. January 20, 2016. 5 Dezameau v. Canada (Minister of Citizenship and Immigration), 2010 FC 559 (CanLII). 6 NDP on Haiti (March 29, 2019) Tab 7.1: The security situation, including crime and kidnappings; measures taken by the government and other stakeholders to fight crime (2014-June 2018). IRB. June 19, 2018. HTI106116.FE. 7 Prophete, Ralph v. M.C.I (F.C., No. IMM-3077-07), Tremblay-Lamer, March 12, 2008. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-26034 MB8-26035 / MB8-26036 RAD.25.02 (April 4, 2019) Disponible en français 4 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 (April 4, 2019) Disponible en français