MB9-19407

RAD File / Dossier de la SAR : MB9-19407 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, ON Appel instruit / entendu à Date of decision November 23, 2020 Date de la décision Panel Susan Brown Tribunal Counsel for the person who is the subject of the appeal Sabine Venturelli 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 who fears bandits who tried to kill him. [2] The Refugee Protection Division (RPD) found that the Appellant did not credibly establish his claim and did not establish, on a balance of probabilities, that he would be subjected personally to a prospective risk of harm not faced generally in Haiti pursuant to subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). [3] The Appellant argues that the RPD erred in its analysis of both credibility and risk. [4] Following my own review, I find that the RPD did not err. The Appellant was not credible and did not establish that he faces a prospective risk of harm in Haiti. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [6] According to his Basis of Claim form (BOC)1 two armed bandits on motorcycles shot at the Appellant and his employee on June 17, 2017 in Port-au-Prince while he was in his car on an errand to buy car parts. Upon hearing police sirens, the bandits fled and one of them yelled "on te retrouvera quand même", we will find you anyway [trans]. [7] The Appellant was a partner in a successful XXXX XXXX XXXX business and many merchants and businessmen were killed and robbed in Haiti. The Appellant always carried hundreds of dollars to XXXX XXXX XXXX. [8] The Appellant lodged a complaint with the police on the same day as he was attacked but the police did not carry out an investigation and did not apprehend the bandits. [9] The Appellant did not return to his home or business and went into hiding. He obtained a visa for Canada and left Haiti on XXXX XXXX, 2017. The Appellant's refugee claim was received on October 26, 2017. STANDARD OF RAD REVIEW [10] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which in particular cases attracts deference.2 Unless specifically stated below, I have applied the correctness standard. ANALYSIS [11] The RPD identified the determinative issues as credibility and risk of harm pursuant to subsection 97(1) of the IRPA. [12] The RPD identified significant problems with the Appellant's credibility during his testimony: disjointed and contradictory testimony about the events of June 17, 2017; the police report did not state that his friend XXXX was with him; contradictory testimony about his delay in claiming refugee protection; and, vague and circuitous answers to the RPD's questions about his business and his business partner. [13] The RPD did not find that the Appellant's problems with extortion based on compromising videos in 2019 in Canada exposed him to a risk in Haiti. Taking into account the credibility issues the RPD rejected the Appellant's allegations that bandits tried to kill him because he runs a XXXX. The RPD found that the fact that the Appellant is a good XXXX who runs a XXXX is not sufficient to establish that the risk he faces is any different from the general population in Haiti. [14] The Appellant does not make any submissions about the RPD's finding about the extortion the he faced in 2019 but argues that it erred in its other findings. Under the heading "les motifs de contestation" grounds for challenge [trans], the Appellant also submits that the RPD made its decision on non-determinative issues, its reasons were incoherent and unintelligible and its determination on the absence of risk was unclear. [15] Following my review of the record, the testimony and arguments of the Appellant, for the reasons detailed below, I agree with the RPD that the Appellant was not credible and that he did not establish, on a balance of probabilities, that he faces a prospective risk to his life or to cruel and unusual punishment in Haiti. Les motifs de contestation [16] The Appellant argues that in arriving at its conclusion that the RPD: - "a fondé sa décision sur des éléments non pertinents et non déterminants pour l'issue des droits revendiqués par la partie appelante",3 based its decision on irrelevant and non-determinative elements; - "tiré des inférences négatives sur des éléments non déterminants et encore moins pertinents à la demande de la partie appelante",4 drew negative inferences on non-determinative elements and even less relevant to his claim; - "s'est appesanti sur des faits non déterminants pour établir quels sont les " éléments pertinents " de cette affaire et quelle est la valeur probante à leur accorder à chacun",5 dwelled on non-determinative facts to establish the relevant elements of the claim and the probative value to give to each; - "n'a pas clairement établi de quelle façon elle conclut à l'absence de risque de persécution de l'appelant par rapport à sa crainte d'être tué advenant un retour en Haïti",6 did not clearly establish how it concludes that there is no risk of persecution of the appellant in relation to his fear of being killed if he returned to Haiti; and - "cette décision manque de cohérence et d'intelligibilité",7 decision lacks coherence and intelligibility. [17] All these arguments are presented as bald statements without examples or references to the RPD decision. [18] As detailed below the RPD's first credibility finding relates to the events of June 17, 2017 which are the very foundation of the Appellant's claim. The RPD's second credibility finding relates to his delay in making a refugee claim after arriving in Canada. The Federal Court is clear that while delay in making a claim is not necessarily determinative of the credibility of a claim it is a relevant factor which may be taken into account. The RPD's last credibility finding about the Appellant's business and his partner also goes to the core of his claim. [19] The Appellant does not appear to make a distinction between the analysis of a claim under section 96 and subsection 97(1) when he argues that the RPD did not clearly establish how it concludes that there is no risk of persecution in relation to his fear of being killed if he returned to Haiti. [20] The Federal Court of Appeal has clearly said that subsection 97(1) does not have a subjective component: 8 As such a determination of whether a claimant is in need of protection requires an objective assessment of risk, rather than a subjective evaluation of the claimant's concerns. Evidence of past persecution may be a relevant factor in assessing whether or not a claimant would be at risk of harm if returned to his or her country, but it is not determinative of the matter. Subsection 97(1) is an objective test to be administered in the context of a present or prospective risk for the claimant. (emphasis in the original) [21] The Federal Court of Appeal described the difference between the analysis of claim under subsection 97 from a claim under section 96:9 [6] Unlike section 96 of the Act, section 97 is meant to afford protection to an individual whose claim "is not predicated on the individual demonstrating that he or she is [at risk] ... for any of the enumerated grounds of section 96" (Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239 at paragraph 33). [7] The examination of a claim under subsection 97(1) of the Act necessitates an individualized inquiry, which is to be conducted on the basis of the evidence adduced by a claimant "in the context of a present or prospective risk" for him (Sanchez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 99 at paragraph 15) (emphasis in the original). [22] As detailed above and below, I find that the RPD stated very clearly why it concluded that the Appellant does not face a personalized prospective risk of harm any different from the risks faced by the general population in Haiti. [23] I do not find that the RPD decision lacked coherence or intelligibility. Credibility [24] The RPD identified significant problems with the Appellant's credibility in relation to the events of June 17, 2017 and the police report; his delay in claiming refugee protection; and his testimony about his business and his business partner. The Appellant argues that the RPD was "expeditive" in its analysis of the evidence. Events of June 17, 2017 [25] The Appellant's evidence about the events of June 17, 2017 is found in his BOC, his testimony and the police complaint: BOC10 Testimony 11 Police complaint12 J'ai été attaqué par deux hommes armés de pistolets qui étaient en moto. Il y avait deux personnes sur une motocyclette qui m'avaient attaqué. Je suis sorti pour acheter des pièces juste pour réparer une voiture puis je suis mécanicien, deux individus lourdement armes à bord d'une motocyclette m'ont attaqué. J'étais dans ma voiture avec un de nos employés en route pour acheter des pièces automobiles. Je partais au centre-ville pour aller acheter des pièces pour réparer une voiture. L'un des bandits à moto a crié ?tire-le? et à tour de rôle, ils one fait feu sur moi et par deux fois leurs armes se sont enrayées, en faisant marche arrière pour me protéger, j'ai entendu plusieurs coups de feu, je suis sortie de l'auto et j'ai couru pour me cacher et l'autre mécanicien a fait de même. Les deux personnes à motocyclette n'étaient pas loin et elles se sont rapprochées et elles ont montré leur arme. Ils voulaient tirer sur moi. Et l'arme n'a pas été déclenchée. Ils ont tiré plusieurs projectiles contra ma personne mais grâce à ma vigilance j'ai eu le temps de courir et de me cacher. Ensuite j'ai entendu la sirène et des voitures de police qui arrivaient sur la rue. Les deux hommes ont pris la fuite sur leur moto et l'un deux a crié ?on te retrouvera quand même.? Et là, j'ai entendu la sirène des voitures de police, il y avait eu un cortège qui passait. Les deux personnes à motocyclette, elles se sont déplacées, elles m'ont promis de m'avoir. ... elles sont parties, mais au moment où elles ont tiré, j'étais avec un ami dans la voiture, on a couru pour aller se cacher parce qu'il y avait un blocus, il y avait de l'embouteillage. Ils ont parlé très fort en disant qu'ils me retrouveront quand même. [26] The RPD questioned the Appellant about several inconsistencies in his evidence: whether the Appellant was still in the car when the bandits shot at him, whether the shooting occurred before or after the bandits heard the police sirens, how the Appellant knew he was being shot at and why he did not reference the person who was in the car with him in his police complaint. [27] The Appellant testified that the bandits tried to shoot him, but their weapons did not work, and they shot at him after they heard the police sirens. The RPD asked why the bandits shot at him after hearing the police sirens and the Appellant replied "J'ai entendu le bruit et c'est eux autres qui étaient armés. Pour moi, c'est eux autres qui ont tiré."13 I heard the noise and they were armed, for me it was [the bandits] who fired [trans]. [28] The RPD then asked why the police complaint said that the bandits "on tire plusieurs projectiles contre ma personne" shot many bullets at me [trans], the Appellant responded "ils ont tiré, mais ça n'a pas marché ; mais après j'ai entendu des balles"14 they fired but it didn't work; but afterwards I heard bullets [trans]. When the RPD asked how the Appellant knew that the shots were in his direction he said "c'est moi qu'on recherchait"15 it was me they were looking for [trans]. When asked why the police complaint did not mention that someone else was in the car with him the Appellant said that the other person did not make a police complaint with him and that he was the only one affected by the attack because he was the businessman.16 [29] The RPD found the Appellant's explanations to be contradictory, confused and that he adjusted his testimony about the attack which was the central element of his claim. This undermined his credibility. The RPD also found that the Appellant's explanation for not referencing the person in the car with him who was potentially an important witness in his police complaint was not reasonable and did not give any evidentiary weight to the police complaint. [30] The RPD concluded that the Appellant was not assaulted on June 17, 2017 in the circumstances he described. The RPD also found that the Appellant did not establish the link between the attack and being a businessman; the bandits did not speak to him other than saying they would come back for him and he was not attacked by them in the past nor did they attack his business afterwards. I also note that the Appellant testified that he did not know his attackers, that they were "des inconnus".17 [31] In his submissions the Appellant does not reference all the contradictions and inconsistencies identified by the RPD focusing instead on the contradiction between his BOC, where he said an employee was in the car with him at the time of the attack, and his testimony, where he said his friend XXXX was in the car with him at the time of the attack. The Appellant argues that this was a minor contradiction and that it was reasonable to believe that XXXX feared reprisals if he made a complaint. I note that there is no evidence on the record that XXXX feared reprisals if he made a complaint. [32] As detailed above the inconsistencies and contradictions on the face of the Appellant's evidence about the triggering event and the most important element of his claim, which were not reasonably explained, are sufficient to undermine the credibility of his claim. Delay in claiming protection [33] The Appellant arrived in Canada on XXXX XXXX, 2017 because he said he feared for his life after the June 17, 2017 attack.18 When the RPD asked the Appellant why he did not seek protection upon arrival, he testified that he hoped that the situation in Haiti would improve.19 The Appellant's claim for protection was received on October 26, 2017. The RPD found that the Appellant's delay in claiming was behaviour inconsistent with a fear of harm and made a negative credibility inference. [34] The Appellant argues that delay in claiming is not determinative. I agree. As noted above the Federal Court is clear that while delay in making a claim is not necessarily determinative of the credibility of a claim it is a relevant factor which may be taken into account. Business and business partner [35] The Appellant testified that he did not warn his business partner following the June 17, 2017 incident and that he did not try to find out what happened to the XXXX XXXX after that date. The RPD found that when it asked the Appellant why he had not contacted his business partner he avoided responding directly to the question.20 Since the Appellant's fear for his life was directly related to his business, the RPD found that he would reasonably have been expected to contact his partner especially as the bandits allegedly said that they would be coming back. [36] The Appellant argues that he did not contact his partner because he was in hiding and did not want to be found. This does not explain why the Appellant did not attempt to contact his partner by telephone.21 [37] The RPD found that the behaviour of the Appellant, without a reasonable explanation, undermined the credibility of his allegations about the risks he faced due to his business activities. I agree. Prospective Risk [38] In its analysis of the prospective risk faced by the Appellant, the RPD canvassed the objective evidence noting that the security situation in Haiti is precarious with reports of violent crimes including murders, thefts and kidnappings of anyone perceived as wealthy.22 The RPD cited the Federal Court as authority for the proposition that:23 The risk of all forms of criminality is general and felt by all Haitians. While a specific number of individuals may be targeted more frequently because of their wealth, all Haitians are at risk of becoming the victims of violence. [39] Considering the credibility issues, the RPD rejected the Appellant's allegations that the bandits tried to kill him because he runs a XXXX. While accepting the Appellant's evidence that he was a good XXXX and ran an XXXX XXXX XXXX the RPD concluded that it was not sufficient in the circumstances to establish that the Appellant's risk was different to that of the general population in Haiti. [40] The Appellant submits that the RPD wrongly concluded that there was no prospective risk and argues that his evidence demonstrated that he faces an objective risk to his life. For all the reasons outlined above, I do not agree. [41] I find that the RPD did not err when it found that the Appellant did not establish, on a balance of probabilities, that if he returned to Haiti he would face a personalized risk to his life or of cruel and unusual punishment. CONCLUSION [42] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) "Susan Brown" Susan Brown November 23, 2020 Date 1 RPD-1, RPD Record, pages 17-26, Exhibit 2, as amended, page 15, Exhibit 8. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 3 P-2, Appellant's Record, page 18, Appellant's Memorandum, para. 1.5. 4 P-2, Appellant's Record, page 18, Appellant's Memorandum, para. 1.6. 5 P-2, Appellant's Record, page 18, Appellant's Memorandum, para. 1.7. 6 P-2, Appellant's Record, page 18, Appellant's Memorandum, para. 1.8. 7 P-2, Appellant's Record, page 18, Appellant's Memorandum, para. 1.9. 8 Sanchez v. Canada (Citizenship and Immigration), 2007 FCA 99, para. 15. 9 Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31, at paras. 6 and 7. 10 RPD-1, RPD Record, page 18, Exhibit 2, BOC. 11 Transcript of Hearing of July 4, 2019, pages 48 and 49. 12 RPD-1, RPD Record, pages 95 and 96, Exhibit 4. 13 Transcript of Hearing of July 4, 2019, page 58. 14 Transcript of Hearing of July 4, 2019, page 59. 15 Transcript of Hearing of July 4, 2019, page 59. 16 Transcript of Hearing of July 4, 2019, pages 59 and 60. 17 Transcript of Hearing of July 4, 2019, page 31. 18 Transcript of Hearing of July 4, 2019, page 32. 19 Transcript of Hearing of July 4, 2019, page 41. 20 Transcript of Hearing of July 4, 2019, pages 6974. 21 Transcript of Hearing of July 4, 2019, pages 7374. 22 RPD-1, RPD Record, Exhibit 3, National Documentation Package for Haiti 28 June 2019, tab 7.2: Haïti: La situation sécuritaire, France. Office français de protectoins des réfugiés et apatrides, 29 August 2016; tab 7.8: Major criminal groups, including their areas of operation, their structure and their activities; state response, HTI106293.FE, Immigration and Refugee Board Canada (IRB), 6 June 2019 and tab 14.1: Whether Haitians who have lived abroad for a long time are at risk if they return to the country..., HTI106204.FE, IRB, 29 November 2019. 23 Prophète v. Canada (Citizenship and Immigration), 2008 FC 331, para. 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-19407 RAD.25.02 (January, 2020) Disponible en français 2 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