MB9-16269

RAD File No. / N° de dossier de la SAR : MB9-16269 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 / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision August 28, 2020 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person who is the subject of the appeal Perla Abou-Jaoudé 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 OVERVIEW [1] The appellant, XXXX XXXX XXXX, is a citizen of Haiti. He is a 46-year-old married man. His wife and his daughter live in Haiti. [2] The appellant states that he cannot return to Haiti because a group of criminals called Kakos, who are linked to his uncle, XXXX XXXX, want to harm him. The appellant states that he worked for a XXXX XXXX, XXXX XXXX, from XXXX XXXX 2012 to XXXX XXXX, 2015. The appellant states that, in 2016, his uncle wanted him to help him find a job at XXXX XXXX. According to the appellant, because his uncle was unable to get a job with the company, he wanted to get revenge on him. Subsequently, on XXXX XXXX 2017, the appellant states that Kakos criminals violently attacked him. [3] The appellant left Haiti for the United States on XXXX XXXX, 2017. The appellant entered Canada on XXXX XXXX, 2017, and claimed refugee protection. [4] The Refugee Protection Division (RPD) rejected his refugee protection claim because of a lack of credibility. [5] The appellant argues that the RPD's findings regarding his credibility are unreasonable because the RPD failed to consider that he was nervous at the hearing. [6] My role consists of reviewing all of the evidence and determining whether the RPD's decision is correct.1 DETERMINATION [7] I dismiss the appeal. The RPD was correct to determine that the appellant is not a Convention refugee or a person in need of protection. REQUEST FOR AN ORAL HEARING DENIED [8] The appellant requested that I hold an oral hearing. Before holding an oral hearing, new evidence must be admitted on appeal in accordance with subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). Since no new evidence was presented or admitted, I cannot hold an oral hearing. ANALYSIS [9] I listened attentively to the recording of the hearing and I analyzed the record as a whole. I agree with the RPD, as I will explain below, that the allegations are not credible. The appellant's stress level [10] The appellant argues that he was extremely nervous at the hearing and that the RPD failed to consider this fact when it noted the consistency problems between his evidence and his testimony. His memorandum indicates: [translation] "from the start of the hearing, even just confirming the truthfulness of his BOC Form, one can hear the uncertainty and the questioning of the appellant, who is unable to answer a simple question. Moreover, the justification that he gives following the panel's questions is further evidence of the appellant's nervous state. Throughout the hearing, the appellant, in his dates and in the chronology of the events. He even states that XXXX 2016 is before XXXX 2016. This shows the appellant's general confusion in relation to all his legal proceedings. Furthermore, in my opinion, this nervousness is also reflected in the CIC Schedule A form. The panel should not have consequently considered the errors in form A given that it is clear that these forms, which were completed at the port of entry, were completed incorrectly, not interpreted, and that there was enormous pressure on the CBSA at that time....The appellant states that he was nervous when he arrived, and we can see the errors that resulted, and he explains it all by stating that this is what came to mind."2 [11] I disagree with the appellant. First, the appellant completed the Schedule "A" form in Montréal before an immigration officer on September 6, 2017, approximately six weeks after he arrived in Canada, and not at the port of entry.3 It is certainly possible that the appellant was nervous when he entered Canada, without a visa, on XXXX XXXX, 2017, making known his intention to make a claim for refugee protection. It is also possible that he was still nervous when he completed his forms in the presence of an immigration officer a number of weeks later. However, it is reasonable to believe that, at that point, he would have had the time to understand his situation and reflect on the next steps. [12] It is true that the appellant did not use the services of an interpreter when he completed these forms on September 6, 2017. However, when listening to the recording of the hearing, it is clear that the appellant had sufficient language skills to understand and complete the forms adequately in French. [13] At the start of the hearing, the appellant's level of language was established with the following questions and answers: [Translation] Counsel for the appellant: Since this document (the BOC Form) was not translated from French into Creole for you, do you understand everything in this document? (0:05) Appellant (in French): No, not really. Counsel for the appellant: What did you not understand? Appellant (answers in Creole, translated by the interpreter): Actually, I would say that it's not that I don't understand. Counsel for the appellant: What don't you understand? Appellant (answers in Creole, not translated by the interpreter): It's not that I don't understand. In my sentences or in what I wrote...(in French) I understand everything that I wrote. RPD (without the interpreter): So, Sir, do you read and write in French? Appellant (answers in French without interpretation): Yes. RPD (without the interpreter): Because this document, you filled it out yourself? Appellant (answers in French without interpretation): Yes. I wrote it. RPD: Without the help of a translator? Appellant (answers in French without interpretation): Yes. RPD: Is that right? Appellant (answers in French without interpretation): Yes. RPD: So, the questions are written in French... Appellant (answers in French without interpretation): Yes. RPD: And you answered in French? Appellant (answers in French without interpretation): Yes. RPD: So, that's what the panel was trying to confirm with you. But why did you hesitate before you answered?... RPD (with interpretation): The panel noted that you answered the questions that were asked in French without waiting for translation into Creole. So, with regard to the services of the interpreter here today, do you want to use the interpreter only when you feel the need or do you want the interpreter to translate everything that is said today at the hearing? Appellant (answers in Creole, translated by the interpreter): Everything that will be said at the hearing... RPD (with interpretation): With regard to your Basis of Claim Form, you confirmed that you read and write in French. Appellant: Yes. The RPD (with interpretation): The panel wants to know why you hesitated before answering when your consultant asked you the question. The question was: "Did you understand everything that was written in this document?" Appellant: Yes. RPD (with interpretation): So, answer, Sir. Why did you hesitate? Appellant (answers in Creole, not translated by the interpreter): I didn't hesitate. I just didn't understand the question yet.4 [14] With regard to his education, the appellant states in his forms eight years of primary school, seven years of secondary school and one year of vocational training.5 In light of his level of French, as well as his education and the obvious care that he took in completing the forms, I am of the opinion that the RPD was correct to consider the answers in the forms that he completed on September 6, 2017. [15] With regard to the appellant's confusion relating to the dates, the RPD prudently questioned the appellant to determine whether he had simply had difficulty remember the dates as numbers or whether the appellant's story cannot stand, as he was unable to give an approximation of how much time had elapsed between the events. For example, in paragraph 11 of its reasons, the RPD gave the appellant the benefit of the doubt when he testified that he worked at XXXX XXXX from XXXX 2012 to XXXX 2015, instead of XXXX 2013 to XXXX 2014, as he notes in his Schedule "A". However, the RPD drew a negative inference when the appellant testified that his wife and daughter were threatened in XXXX 2018, instead of XXXX 2017, as is written in his written account, because the RPD established that the appellant did not simply make a date error. At that specific moment, the RPD asked him how much time had passed after he left the country (XXXX XXXX 2017) before his wife and daughter were threatened (XXXX XXXX XXXX XXXX, 2017). The appellant answered [translation] "a number of months." However, according to his amended written account, only a few days had passed. When the RPD asked the appellant to confirm the correct date, the appellant responded that the information in his amended written account was correct and that that event occurred in 2017 and not in 2018.6 The RPD asked him why he then answered that the event occurred "a number of months" after he left. The appellant blamed stress. [16] Similar to the RPD, I do not accept the appellant's explanation. If his wife and child were threatened seven days after he left the country, it is reasonable to believe that he would have been able to answer the RPD's question with a more specific approximation, that is, in days and not in months. However, he answered instead: [translation] "I had already left Haiti when the event occurred, I was already here...I left Haiti on XXXX XXXX, 2017, and the event occurred on XXXX XXXX XXXX XXXX, it had been a number of months."7 It is clear that the appellant tried to calculate the time that had elapsed between the two dates instead of responding to the question from memory. Furthermore, he was not in Canada on XXXX XXXX XXXX XXXX, 2017. He was still in the United States at that time. [17] I am of the opinion that the RPD did indeed consider that the appellant had difficulty with the dates during his testimony and rephrased its questions based on the appellant's abilities. I am also of the opinion that the RPD was correct in rejecting the appellant's explanations to the effect that all his errors were due to stress. The RPD asked its questions carefully in a calm and non-confrontational manner to ensure that the appellant had a number of opportunities to respond in a consistent manner. The Refugee Protection Division was correct to reject the appellant's explanations regarding the omissions in his Basis of Claim Form, the inconsistencies and the contradictions [18] The appellant argues that the RPD erred when it considered his explanations for the apparent inconsistencies unreasonable. In his memorandum, the appellant argues that the RPD should have given him the benefit of the doubt and attributed probative value to his testimony.8 [19] I disagree with the appellant. As explained in the previous section of this decision, the RPD gave the appellant the benefit of the doubt for one of the contradictions pertaining to event dates. However, there were too many consistency problems in the appellant's claim. It would have been impossible not to address them and to reconstitute a viable history of persecution. [20] The RPD raised serious issues with the appellant's testimony in paragraphs 11 to 17 of its reasons. For example, the RPD notes that the appellant testified that he stopped working at XXXX XXXX in 2015, and yet stated that, when his uncle asked him to find him a job at his company in 2016, he was still an employee of XXXX XXXX. When the RPD asked the appellant to explain this contradiction, the appellant changed his testimony. He answered that he was no longer working at XXXX XXXX at that time, but that: [translation] "I still had access like a supervisor and could get anyone a job in the company...When you work at a company, once you have done...everything you have to do very well, you have the opportunity bring in anyone to the company."9 While this response seems implausible as a general rule, nevertheless, it does not explain why he initially testified that he worked for the company when his uncle asked him to get him a job there. As a result, the appellant did not provide an explanation for his changing testimony. [21] In addition to the RPD's numerous observations, which, I am of the opinion, constitute a sufficient basis for finding the allegations not credible, I noted another major contradiction. The Federal Court sets out that "it is now a well-established fact that when the credibility of a refugee protection claimant is at the heart of the RPD's decision and the grounds for appeal before the RAD, the RAD is entitled to make independent findings in this regard, without having to question the applicant or giving the applicant another opportunity to make submissions."10 [22] In the appellant's Basis of Claim Form (BOC Form), the appellant, in response to the question, "Did you ask any authorities such as the police, or any other organization, in your country to protect or assist you?" answers that he did not ask the police for help. He explains: [translation] "I didn't ask the authorities such as the police, or any other organization to protect me because I was traumatized by what had happened to me and by knowing that my uncle XXXX was part of a gang. I hesitated to file a complaint because I know that there are some police officers who are members of gangs in Haiti, so I didn't have a lot of trust in my country's legal system. That's why I didn't file a complaint."11 However, at the hearing, the appellant testified that he filed a complaint with the police, who informed him that the Kakos group is so powerful and well-armed that the police cannot do anything and that he should simply go into hiding.12 [23] To conclude, I am of the opinion that the RPD was correct in not believing the appellant's story in light of all the contradictions, omissions and inconsistencies. CONCLUSION [24] In conclusion, similar to the RPD, I find that the appellant's allegations are not credible. I conclude that the appellant failed to demonstrate that there is a serious possibility that he would be persecuted under one of the Convention grounds or that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life or to a risk of cruel and unusual treatment or punishment if he had to return to Haiti. [25] For these reasons, I dismiss the appeal and confirm the determination of the RPD that the appellant is not a Convention refugee or a person in need of protection. (signed) Jillan Sadek Jillan Sadek August 28, 2020 Date IRB translation Original language: French 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 P-2, Appellant's memorandum, paragraphs 34-38, appellant's record, p. 6. 3 SPR-1, Schedule A, Refugee Protection Division (RPD) record, p. 53. 4 Minutes 0:05-0:10 of the recording of the hearing before the RPD, May 24, 2019. 5 SPR-1, Schedule A, RPD record, p. 50. 6 At approximately minute 1:33 of the recording of the hearing before the RPD, May 24, 2019. 7 At approximately minute 1:31 of the recording of the hearing before the RPD, May 24, 2019. 8 P-2, Appellant's memorandum, paragraphs 44-49 of the appellant's record, p. 7. 9 Minutes 1:08-1:09 of the recording of the hearing before the RPD, May 24, 2019. 10 Corvil v. Canada (Citizenship and Immigration), 2019 FC 300. 11 SPR-1. Basis of Claim Form, RPD record, p. 12. 12 At approximately minute 1:15 of the recording of the hearing before the RPD, May 24, 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB9-16269 RAD.25.02 (January 2020) Disponible en français 8 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 (January 2020) Disponible en français