MB9-16592

RAD File No. / No de dossier de la SAR : MB9-16592 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 October 7, 2020 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person who is the subject of the appeal Marie-José Blain 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 49-year-old citizen of Haiti. She is married; her husband and two adult sons live in Haiti. [2] The appellant alleges that she cannot return to Haiti since two former colleagues at her workplace, XXXX XXXX XXXX, wish to harm the appellant because she received the promotion they wanted on February 15, 2016. The appellant alleges that her two colleagues arranged for criminals to rape her on February 17, 2016, and that afterward, the criminals started to threaten her by telephone, so she had to leave the country. [3] The appellant left Haiti in XXXX 2016 for the United States with a valid visitor's visa. The appellant stated that she applied for asylum in the United States, but that she left the country before getting a result. The appellant then entered Canada, where she claimed refugee protection on XXXX XXXX, 2017. The appellant submitted her Basis of Claim Form (BOC Form) on September 26, 2017. She submitted an amended written account eight days before the hearing in May 2019. [4] The Refugee Protection Division (RPD) rejected her refugee protection claim due to a lack of credibility. [5] In her memorandum, the appellant argues that the RPD erred in its assessment of her credibility, her prospective fear if she returned to Haiti and her gender-related fear. [6] My role is to review all the evidence and to determine whether the RPD decision is correct.1 DETERMINATION [7] I dismiss the appeal. The RPD was correct to determine that the appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [8] I carefully listened to the recording of the hearing and analyzed the entire record. I considered Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.2 As I will explain below, I agree with the RPD that the allegations are not credible. The determinative issue is lack of credibility. The Refugee Protection Division correctly identified serious credibility problems at the hearing [9] The appellant accused the RPD of conducting an overzealous analysis of her testimony and of being too meticulous and thorough to justify rejecting her claim. [10] I disagree with the appellant. At the hearing, the RPD noted significant omissions and contradictions between the appellant's testimony, her immigration forms, her written accounts and her documentary evidence. [11] The first example of the RPD's [translation] "overzealousness," which the appellant describes in her memorandum, is the contradiction the RPD noted between what she wrote in her IMM5669 form and her testimony regarding the dates she worked at XXXX XXXX XXXX. This is important because the appellant stated that all her problems in Haiti stemmed from the fact that she got a promotion on February 15, 2016, at XXXX XXXX XXXX, and that this provoked a jealous reaction from two of her colleagues: XXXX and XXXX (phonetic spelling).3 [12] In her IMM5669 form, completed on September 7, 2017, the appellant states that she worked at XXXX XXXX XXXX from XXXX 2012 to XXXX 2015.4 The appellant also provided a letter from the XXXX, dated May 20, 2015, stating that the appellant worked at the XXXX from XXXX 2012 to [translation] "the present."5 This letter is therefore consistent with what she wrote in the IMM5669 form. However, when she testified before the RPD in May 2019, the appellant alleged that she worked at XXXX XXXX XXXX until XXXX XXXX XXXX 2016, the day she was promoted to XXXX XXXX XXXX XXXX When the RPD asked the appellant about this contradiction, the appellant explained that she was confused and that she must have had a problem remembering. The RPD then asked why she indicated June 2015 in her IMM5660 form, which is not only the wrong month, but also the wrong year. The appellant responded that she did not know.6 [13] The appellant argued that the RPD should not have drawn a negative inference from this contradiction. In her memorandum, the appellant states that she was simply wrong about when she had left her job at XXXX XXXX XXXX. The memorandum states the following: [translation] "it was unreasonable to find that it was such a significant contradiction in the appellant's testimony. Following the member's reasoning, the appellant was simply not allowed to make a mistake on any detail of her refugee protection claim. Considering the conditions in which this form was completed at the border, it was justifiable for an error to occur."7 [14] First, the IMM5669 form was completed and signed in Montréal on September 7, 2017, and was confirmed before an immigration officer, not at the border when the appellant entered the country on XXXX XXXX, 2017.8 It is therefore not a question of having completed the form in hasty or distressing conditions. In addition, at the hearing, the appellant's counsel asked her whether she had used the services of an interpreter when she completed the IMM5669 form, and the appellant responded that she did indeed have an interpreter.9 [15] Second, none of the letters from her employer at XXXX XXXX, or even her own written accounts, corroborate her promotion at XXXX XXXX XXXX on February 15, 2016. Her initial written account indicates that she got a promotion at a [translation] "XXXX XXXX XXXX10 and the amendment refers only to a promotion, but does not name the school.11 [16] The appellant accused the RPD of unreasonably rejecting the employment letter from XXXX XXXX XXXX dated May 20, 2015, which states that the appellant worked at the XXXX from XXXX 2012 to "the present,"12 only because she did not confirm her employment at the time the events on which her refugee protection claim is based took place.13 However, it was not a matter of rejecting the evidence; the RPD simply noted that the letter could not support her allegations and therefore had no probative value. I agree with the RPD. [17] Third, the appellant testified that two of her colleagues at XXXX XXXX XXXX, XXXX and XXXX, had told her about the plot against her on February 19, 2016, and that they had identified her colleagues, XXXX and XXXX, as the individuals behind the attack of February 17, 2016.14 Yet the complaint she filed with the police makes no mention of her two colleagues, nor does it mention that she believed the attack was due to her promotion at XXXX XXXX XXXX. When the RPD asked the appellant why she did not identify to the police the two women responsible for the crime, the appellant responded that she did not report their names. The RPD had to ask the appellant why once again. The appellant answered: [translation] "Because I simply did not want to report them."15 The appellant had no other explanation. The RPD also asked the appellant why she did not include the names of her persecutors, XXXX and XXXX, in her written account. The appellant responded: [translation] "No, I did not name them." Again, the RPD had to ask her why a second time. The appellant answered: [translation] "No reason."16 [18] As demonstrated by the questions and answers above, the appellant had no explanation for failing to mention to the police and in her written accounts that her problems were due to XXXX and XXXX, her co-workers at XXXX XXXX XXXX. This fact alone seriously undermines her credibility. Consequently, I fully agree with the RPD that the contradiction between the appellant's testimony and her IMM5669 with respect to the dates she was employed at XXXX XXXX XXXX is an important consideration. [19] The second example of the RPD's [translation] "overzealousness," which the appellant describes in her memorandum, is the fact that the RPD noted that the appellant had stated in her BOC Form that after she left her country in XXXX 2016, her family [translation] "lived like nomads all because of the threats."17 Yet when she testified before the RPD, the appellant stated that her husband and children have not changed addresses for the past ten years.18 When the RPD asked the appellant why she had written that they lived like 'nomads,' the appellant responded that it was [translation] "because after I left, they were getting a lot of threats, so they felt threatened; they could not live without me;" and for her, living like a nomad meant: "when the children feel uncomfortable and they experience all kinds of problems."19 [20] The appellant submits the following in her memorandum: [translation] "However, while the general sense of the term refers to the notion of constant mobility, it is clear that the appellant did not know the meaning of the word or used it in another context. ...We submit that it is inconceivable for the member to draw such a negative inference from this discrepancy. The panel was overzealous in its assessment of the evidence in the appellant's record, and this excerpt is a glaring example of this."20 [21] I disagree with the appellant. The RPD was correct in noting this contradiction and in not accepting the appellant's explanation. The appellant had assistance from a legal counsel (XXXX XXXX), who is apparently fluent in French, to complete her BOC Form, and the allegation that her family had to [translation] "live like nomads" is part of her answer to question 2(d) "Did you move to another part of your country to seek safety?"21 Consequently, it is reasonable to expect that the word 'nomad' was chosen with the full knowledge of its meaning. [22] Furthermore, as was noted by the RPD, the appellant stated that her family no longer received threats after June 2016. However, when she completed her BOC Form in September 2017, she wrote that her family lived like nomads because of the threats, when in fact, they had not received threats for more than a year. The inconsistency is clear. The RPD did not err. Police report [23] Eight days before the hearing, the appellant submitted as evidence a report issued by the [translation] "investigation services of the Haitian national police," which indicates that the appellant reported that on Friday, February 17, 2016, "she was subjected to assault, then sustained injuries to the leg and shoulders, and an attempted kidnapping by two unidentified individuals."22 The report is dated September 25, 2017. No other date appears in the report. There is no mention of her promotion at XXXX XXXX XXXX, no mention of XXXX and XXXX, and no mention of rape. [24] When the RPD asked the appellant at the start of the hearing whether she had any new allegations to add to her BOC Form or any corrections to make, the appellant responded [translation] "yes, a slight modification that I would like to make to the police report. I filed my complaint with the police on Friday, February 19, 2016, but in the statement they put Friday, February 17."23 [25] The appellant argued that the RPD erred when it rejected the police report since it is reasonable to expect that the date on which the complaint was received (which should have been February 19, 2016) would be indicated on it if the document was truthful. Her memorandum states the following: [translation] "It is our submission that the member did not consider the appellant's state of mind when she confronted her about this inconsistency. It is noted that the claimant was clearly caught off guard by this discrepancy and tried to find an explanation. However, the document was written by a third party. It was unreasonable to believe that the appellant had any control over the elements mentioned in this document. The appellant cannot be held responsible for the information appearing in this document."24 [26] I disagree with the appellant. First, since the RPD had concerns about what was written in the report, it was entirely appropriate for it to share its concerns with the appellant to give her the opportunity to clarify its doubts regarding the inconsistency. In this case, the appellant was unable to explain the date problem. [27] Furthermore, the explanation she provided at the start of the hearing when the RPD had asked her whether she had any corrections to make in her BOC Form, did not make sense. If the date written in the report is changed from "Friday, February 17, 2016" to "Friday, February 19, 2016," this means that she was attacked on February 19, which contradicts her testimony since she stated that she was attacked on Wednesday, February 17, 2016. If the date remains as is, "Friday, February 17, 2016," this means that the police officers got the day of the week wrong since the 17th was a Wednesday, not a Friday. While typographical errors can easily appear in official documents, it was not simply the error in the day that the RPD found unusual, but that the date on which the appellant filed the complaint with the police is not specified at all in the report-only the date the attack allegedly took place. I agree with the RPD that the absence of this date casts doubts on the document since one would normally expect such a report to include the date of the presumed incident, as alleged by the complainant, as well as the date on which the complainant requested help from the police. [28] Second, the date indicated at the bottom of the report is September 25, 2017. When the RPD asked the appellant how the report was issued in September 2017, since she had left the country in XXXX 2016, the appellant responded that she had obtained a copy of the complaint when she filed it in February 2016, but since she had left it in Haiti, she asked her husband to obtain a new copy in September 2017. However, this story is not consistent with the document itself, which, on its surface, is not a copy of the document issued in February 2016, but a report stating that it was [translation] "made in Carrefour on 25/09/2017" (p. 73 of the RPD record, police report). The National Documentation Package (NDP) on Haiti states that a complainant, or a relative acting on their behalf, may obtain either a certificate of the police complaint or a copy of the original complaint.25 In both cases, one would expect the date on which the complainant filed the complaint to be recorded. [29] For all these reasons, I fully agree with the RPD that no weight should be given to this report. Medical certificate [30] The appellant submitted a medical certificate dated February 28, 2017, which states that she was seen by a physician at 7 a.m. on February 18, 2016, for [translation] "XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX following physical assaults by armed, unidentified individuals at around 7:30 p.m. on February 17, 2016, at which time she was beaten and raped."26 [31] The RPD asked the appellant how she obtained this certificate since she had left the country in XXXX 2016. The appellant responded that she had sent someone to get it for her in 2017.27 [32] The RPD noted that when the appellant testified about her injuries, she did not mention an injury to her right foot, but the medical report notes that she had a wound on her right foot.28 The appellant explained that they always make mistakes. The RPD also noted that the appellant testified that she had taken pregnancy and AIDS tests, but that these tests were not mentioned in the certificate despite the fact that the results of a blood glucose test, which seems less relevant, were indicated.29 Consequently, the RPD did not give any probative value to the document. [33] In her memorandum, the appellant argues that the RPD should not have rejected the document [translation] "simply because she mentions additional pain."30 The appellant adds that [translation] "in other words, the document had to thoroughly reflect the appellant's allegations to be accepted by the member. ...The member also noted that the AIDS test is not mentioned in the report when the appellant submitted that she had had one. It should be noted that the pregnancy test is also not mentioned in the document. A multitude of reasons can explain why these tests are not indicated in this document, and it is reasonable to believe that the appellant is unaware of them. Furthermore, since it is a document issued from a third party, which, on its surface, seems to be authentic and reliable, the panel should not have rejected it."31 [34] While I agree with the appellant that a medical certificate does not need to thoroughly reflect the appellant's allegations for the RPD to take it into consideration, I agree with the RPD that no probative value should be given to this certificate. [35] In addition to the RPD's findings about the contradictions and omissions, the medical certificate-unlike the police report-mentions that the appellant was raped. The medical certificate is dated February 28, 2017, and the appellant filed her refugee protection claim in Canada in September 2017. In her original BOC Form, the appellant did not mention being raped on February 17, 2016. It was not until eight days before her hearing in May 2019 that she submitted her amended written account with the medical certificate and the other documents in support of her claim, to ensure that this allegation would appear. When the RPD asked the appellant why she did not mention the rape in her original BOC Form, she explained that she had been so traumatized that she did not know what she was doing when she completed the forms.32 The appellant then added that she did not know why she did not include it, but she did not.33 [36] It is true that at the hearing, the appellant explained that being raped is shameful in Haiti, and that after the incident occurred, she and her husband decided not to mention it to anyone.34 I can easily understand the reluctance in the Haitian context, as well as the potential impact of the stigma, even after the appellant left Haiti. However, when the appellant filed her refugee protection claim in Canada in September 2017, she had already lived in the United States for a year and a half, and she alleged that she had also applied for asylum in that country. In addition, when she filed her refugee protection claim in Canada, she already had in her possession the medical certificate confirming that she was a victim of rape. So, when she completed her initial BOC Form, the appellant had previous experience with the asylum system and she had a document that was important to her story about the rape against her; not only that, she had a legal counsel with her. I therefore consider her explanation for not mentioning in her original BOC Form that she was raped-namely, that she does not know why-to be insufficient. For these reasons, I do not consider this allegation, along with the medical certificate submitted eight days before the hearing, to be trustworthy. [37] Consequently, the RPD did not err in concluding that no probative value should be given to the medical certificate. Appellant's prospective fear of persecution [38] Out of an abundance of caution, the RPD concluded that while it believed the appellant's allegations, a prospective risk had not been established. In her memorandum, the appellant contests this analysis. I am of the opinion that this analysis was not necessary since I agree with the RPD that the appellant's allegations are not credible. Consequently, I will not address the appellant's arguments in her memorandum on this matter. Residual fear: women in Haiti [39] The appellant argued that the RPD erred when it suggested that her family situation could provide her with sufficient protection. Her memorandum states that: [translation] "the panel does not take into account that they were present in her life when the events that are the basis of her refugee protection claim took place. In this respect, it is not reasonable to believe that her family members could protect her in all her future travels in Haiti. The appellant's family was unable to protect her when she was attacked, and there is no indication that they will be able to in the future. This factor, which was clearly not analyzed by the member, shows that returning to her family in Haiti, as the panel suggests, would offer her no protection."35 [40] Since the RPD concluded that the appellant's allegations were not trustworthy, it did not have to consider her allegations of being a rape victim when it analyzed her risk as a woman. The RPD did not err, and I agree with its analysis at paragraphs 38 to 43 of its reasons. CONCLUSION [41] In conclusion, like 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 she would be persecuted on one of the Convention grounds or that, on a balance of probabilities, she would be personally subjected to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment if she returned to Haiti. [42] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Jillan Sadek Jillan Sadek October 7, 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 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx. 3 Minute 00:38:00 to 00:39:00 of the recording of the hearing before the Refugee Protection Division (RPD) on May 28, 2019. 4 SPR-1, IMM5669, RPD record, p. 96. 5 SPR-1, Letter from XXXX XXXX XXXX, RPD record, p. 84. 6 About 01:55:00 of the recording of the hearing before the RPD on May 28, 2019. 7 P-2, Appellant's memorandum, appellant's record, p. 22. 8 SPR-1, IMM5669, RPD record, p. 98. 9 About 02:18:00 of the recording of the hearing before the RPD on May 28, 2019. 10 SPR-1, Original Basis of Claim Form (BOC Form), RPD record, p. 29. 11 SPR-1, Amended written account, RPD record, p. 25. 12 SPR-1, Letter from XXXX XXXX XXXX, RPD record, p. 84. 13 P-2, Appellant's memorandum, appellant's record, p. 23. 14 About 01:05:00 of the recording of the hearing before the RPD on May 28, 2019. 15 About 01:56:00 of the recording of the hearing before the RPD on May 28, 2019. 16 About 01:58:00 of the recording of the hearing before the RPD on May 28, 2019. 17 SPR-1, BOC Form, RPD record, p. 31. 18 About 00:22:00 of the recording of the hearing before the RPD on May 28, 2019. 19 Minute 01:47:00 to 01:48:00 of the recording of the hearing before the RPD on May 28, 2019. 20 P-2, Appellant's memorandum, appellant's record, p. 24. 21 SPR-1, BOC Form, RPD record, p. 31. 22 SPR-1, Police report, RPD record, p. 73. 23 About 00:17:00 of the recording of the hearing before the RPD on May 28, 2019. 24 P-2, Appellant's memorandum, appellant's record, p. 26. 25 SPR-1, RPD record, Document 3, Archive - National Documentation Package on Haiti, March 29, 2019, Tab 9.1: 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. HTI104873.FE. 26 SPR-1, Medical certificate, RPD record, p. 72. 27 About 01:26:00 of the recording of the hearing before the RPD on May 28, 2019. 28 SPR-1, RPD reasons, paragraph 25, RPD record, p. 10. 29 SPR-1, RPD reasons, paragraph 25, RPD record, p. 10. 30 P-2, Appellant's memorandum, appellant's record, p. 27. 31 P-2, Appellant's memorandum, appellant's record, p. 27. 32 About 01:32:00 of the recording of the hearing before the RPD on May 28, 2019 33 About 01:33:00 of the recording of the hearing before the RPD on May 28, 2019. 34 About 01:09:00 of the recording of the hearing before the RPD on May 28, 2019. 35 P-2, Appellant's memorandum, appellant's record, p. 30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-16592 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français