MC0-04804

RAD File No. / No de dossier de la SAR : MC0-04804 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 Montréal, Quebec Appel instruit / entendu à Date of decision May 4, 2021 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Aristide Koudiatou Mianata 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, a Haitian citizen, alleges a well-founded fear of persecution by reason of his sexual orientation. [2] He is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim on the ground that credibility is the determinative issue. [3] The appellant did not present any new evidence on appeal and did not request that an oral hearing be held. He is asking the Refugee Appeal Division (RAD) to allow the appeal, to set aside the RPD's decision and to grant him status as a refugee or person in need of protection, or to refer the matter back to the RPD for a new hearing.1 [4] After reviewing all of the evidence independently, listening to the recording of the hearing and considering Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression (SOGIE Guideline)2 adopted by the Immigration and Refugee Board of Canada Chairperson in May 2017, I determine that the decision rendered is correct. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] The appellant is from Port-au-Prince. In his Basis of Claim Form (BOC Form), he alleges as follows. In XXXX 2014 he opened XXXX XXXX XXXX. He met there every XXXX with other homosexual friends and discussed a project to combat homophobia. [7] The appellant further alleges in the BOC Form that his life was no longer the same after one of the XXXX XXXX customers overheard their conversation and revealed his sexual orientation to people in the neighbourhood. [8] The appellant alleges that on XXXX XXXX, 2014, men identifying themselves as being from the government entered his business and assaulted him because of his sexual orientation. On XXXX XXXX, 2014, he tried unsuccessfully to file a police complaint. Fearing for his safety, he left to go live with a friend who had the same problem as he did. He applied for a visa to go to the United States. [9] In XXXX 2014, he left Haiti for the United States. In XXXX 2015, he returned to Haiti and found his XXXX XXXX destroyed, was threatened again and went into hiding at the home of a friend. [10] Fearing for his safety, he decided to leave Haiti permanently on XXXX XXXX XXXX 2015. He stayed in the United States until he came to Canada in XXXX 2017. Impugned decision [11] The RPD indicated that it had considered the SOGIE Guideline.3 [12] It decided that contradictions, omissions and inconsistencies in his testimony undermined the appellant's credibility to the point that it found that he was generally not credible concerning essential elements of his claim. The RPD did not accept that the appellant's sexual orientation was as declared. Its decision was based on the following elements: * Omission from the BOC Form that he had encountered problems prior to the alleged events occurring in 2014, including being ostracized and rejected at both home and school due to his sexual orientation; * Omission from the BOC Form that he was married to a woman in the United States; * Return to Haiti in XXXX 2015, when he asserts that death threats were made against him due to his sexual orientation; * Omission from the immigration forms that he owned an XXXX XXXX by the name of XXXX XXXX. that was allegedly destroyed due to his sexual orientation; * No probative value was given to the photocopy of the certificat de patente [certificate attesting to payment of the tax required to open a business] due to inconsistencies in the evidence, including with respect to the appellant's tax number; * Due to inconsistencies in his testimony, no probative value is given to the medical certificate for the purpose of establishing his assertions as to the circumstances in which he was injured; * The photographs of the computer room have little probative value for the purpose of establishing the facts alleged on a preponderance of evidence. Arguments on appeal [13] It is argued that the RAD must decide whether the RPD: 1. Breached the principles of natural justice and procedural fairness; 2. Erred in the assessment of his credibility; 3. Erred in declining to assess the appellant's risk.4 SCOPE OF THE APPEAL [14] The RAD must conduct an independent assessment of the evidence and determine whether the RPD's decision was correct. In cases where the credibility of oral testimony is at issue and the RPD has a real advantage, the RAD may show deference.5 If this is the case, I will indicate it in my analysis. ANALYSIS The Refugee Protection Division did not breach the principles of natural justice and procedural fairness [15] In my view, issues 1 and 3 submitted by the appellant should be examined together. [16] In the memorandum, the RPD is criticized for limiting its analysis of the appellant's credibility to the testimonial and documentary evidence. It is argued that the RPD breached procedural fairness in that it found that the appellant was not a person in need of protection without conducting an analysis under section 97 of the Immigration and Refugee Protection Act6 (IRPA). [17] A separate analysis is not always necessary and depends on the circumstances of each case.7 In the case at hand, I am satisfied that the RPD did not err. The appellant is basing his claim on one of the grounds listed in section 96 of the IRPA, namely sexual orientation. The RPD considered the appellant to be generally not credible regarding his assertion that his life was in danger in Haiti for this reason. It also did not accept that the appellant was homosexual. I reviewed the entire record and considered the arguments presented by counsel before the RPD and the RAD, and I note that there are no other reasons or objective evidence warranting a separate analysis under section 97 of the IRPA. This argument is rejected. The Refugee Protection Division did not err in the credibility assessment [18] Claims based on SOGIE are singular in that they rely in large part on the veracity of the claimants' homosexuality. According to the SOGIE Guideline, cases involving SOGIE individuals are no different from other cases before the Immigration and Refugee Board of Canada in that decision-makers may draw a negative inference from material inconsistencies, contradictions or omissions that have no reasonable explanation. [19] The RPD decided that it had serious reasons to doubt the appellant's statements to the effect that he encountered problems in Haiti by reason of his sexual orientation. First, it noted omissions from the BOC Form that he had had problems prior to 2014 due to his sexual orientation and noted that the appellant states that he was threatened because of a conversation that took place at his XXXX XXXX, whereas in the immigration documents he does not mention that he ran such a business. [20] On appeal, it is argued that the omission from the BOC Form that he was marginalized and ostracized when he was young due to his sexual orientation is not an actual omission, as these are not the factors that led him to claim refugee protection.8 [21] My reasons for considering that the decision rendered is correct are as follows: [22] First, concerning certain omissions noted by the RPD, I am of the view that the facts omitted from the BOC Form are significant. The appellant states that he cannot live in Haiti because of his homosexuality. At the hearing, he testified that when he was young he was ostracized and marginalized at school and that society has difficulty accepting homosexuals. He testified further that some people viewed him as having mental problems because his behaviour was different from that of boys his age.9 [23] I consider that these facts are significant because they support the examination of prospective risk independently from the other alleged problems associated with the XXXX XXXX. [24] He stated to the panel that he did not mention it in the BOC Form because when he arrived in Canada he was depressed and was afraid that his sexual orientation would be made public because of Canada's good relations with Haiti. I agree with the RPD that the reasons put forward to justify the omission of these facts from the BOC Form are insufficient. Moreover, he stated that the openness in Canada toward people of a different sexual orientation motivated his decision to come to Canada. I note that the omission of this information was not considered on its own but rather in combination with other omissions and factors. [25] The RPD also noted the omission from the BOC Form that he was married to a woman in the United States. His explanations that he entered into this marriage because he was trying to regularize his status in the United States and that this marriage was a shock that had a lasting effect were considered insufficient. [26] On appeal, it is argued that this is not a central element of his claim and that the panel should have examined the nature of the omission or contradiction.10 [27] I agree that not all omissions or contradictions undermine a claimant's credibility. In this case, I do not consider this omission to be significant, but I cannot conclude that the RPD erred in questioning this omission from the BOC Form, among other issues. Inconsistency in evidence relating to XXXX XXXX [28] The appellant alleges in the BOC Form that he opened an XXXX XXXX in XXXX 2014 and that his problems began after one of the XXXX XXXX overhead him talking with his friends about the importance of asserting their rights as homosexuals. Men connected with the government allegedly assaulted him in XXXX 2014 after [translation] "ordering [him] to abandon homosexuality." [29] The RPD noted that inconsistencies in the evidence led it to seriously doubt the appellant's assertions. In its decision, the RPD pointed out the following elements: * The immigration forms do not indicate that he ran an XXXX XXXX beginning in XXXX 2014; * The tax registration card and the certificat de patente contain multiple errors, including: 1) in the applicant's name; 2) the box intended for the applicant's signature contains typed text instead; 3) an error in the street name; and 4) the tax identification number in the documents is not the one indicated in the passport. Due to these inconsistencies, the RPD did not give any probative value to the tax registration card or the photocopy of the accompanying certificat de patente that was issued on the same day. [30] The appellant admits that he does not indicate in the immigration forms that he had an XXXX XXXX and reiterates that he was stressed and depressed when he completed these forms.11 [31] I consider that the inconsistencies in the evidence cast serious doubt that the appellant owned an XXXX XXXX and, consequently, that the alleged events occurred there. The reasons are as follows. [32] First, the RPD was correct to point out that the tax identification number indicated in the passport (0043935155)12 is not the same as the one appearing on the tax registration certificate (004-765-874-5)13 and the certificat de patente (004-765-874-5).14 Tax registration card [33] The RPD did not err in declining to give probative value to the tax registration card and the certificat de patente. [34] There is reason to doubt the appellant's testimony that the differences in the NIFs are attributable to the fact that the number appearing in the passport was assigned to him before age 18 and the one appearing in the other two documents is the number assigned to him upon reaching the age of majority. [35] As noted by the RPD, the passport was issued in October 2013, when the appellant was 24 years old. Moreover, the appellant requested additional time to obtain documentation to corroborate his assertions that his NIF changed upon reaching the age of majority. However, at the time of signing the decision, he had not followed up his request. I observe that, on appeal, the RPD also did not receive any additional evidence suggesting that in Haiti the NIF changes upon reaching the age of majority. [36] What is more, at the hearing, the RPD confronted the appellant with the fact that the registration card submitted as being an original was clearly a colour photocopy. To summarize, the panel noted that the entire document was a colour reproduction of a card that had to have been cut out, since the dotted line on the original cardboard was visible and the stamp and signature were not in ink.15 [37] The RPD had an advantage over the RAD with regard to making this observation since it had the [translation] "originals" in its possession. For my part, I can see with my naked eye that some text on this card, for example, the issue date of the card and the tax collector's name, was printed on top of the stamp of the general tax directorate. I am also surprised that a continuous line that is supposed to be part of the document border runs over top of the stamp. Lastly, as indicated by the RPD, it is curious that the text in the box intended for the applicant's signature was typewritten. [38] These elements, combined with the failure to mention under question 8 of the IMM 5669 form that he ran an XXXX XXXX, cast serious doubt on the appellant's assertions that he owned an XXXX XXXX and had problems at his XXXX for the reasons alleged. Certificat de patente [39] Regarding the certificat de patente, the RPD noted that it was not the original and that it contained numerous spelling errors. In my opinion, the errors in the printed text add to the doubts I have. [40] These reasons lead me to find that the appellant has not credibly established that he owned an XXXX XXXX or that the incidents alleged took place there in XXXX 2014. However, that is not all. Photographs of graffiti and room with computers [41] At the hearing, the appellant stated that he had received threatening letters and that graffiti had been painted on the walls of the business in XXXX 2014. He provided photographs as evidence to show the extent of the graffiti. The RPD decided that the photographs of the graffiti and the photographs of a room with computers had little probative value for the purpose of establishing the facts as alleged. [42] In my opinion, this conclusion is not incorrect. On their own, these photographs have no probative value for the purpose of establishing the appellant's assertions. [43] Listening to the hearing, I also noted that the RPD confronted the appellant with what is a contradiction between the BOC Form and his statements concerning the sequence of the incidents. In the BOC Form, the appellant states that after a customer overheard his conversation with friends, his life was no longer the same. Men from the government beat him in XXXX 2014. At the hearing, however, he stated that the threats in the form of letters and graffiti occurred before the customer overheard the conversation. His explanation that he did not consider the pamphlets or letters as threats is odd to say the least, considering their contents. The RPD was correct to seriously doubt the appellant's assertions.16 Medical certificate [44] The RPD did not give any probative value to the medical certificate issued in XXXX 2019, while he was in Canada, to confirm the injuries resulting from the assault in XXXX 2014. The RPD noted that the medical certificate contains spelling mistakes in the header and inconsistencies as to the attending physician's name, that the terms used to describe the injuries and the treatments administered to the appellant are vague and that the content does not correspond overall to what would be expected of a medical certificate prepared by an accredited physician. [45] I noted his convoluted testimony when he was asked to describe the circumstances in which he obtained this document. He initially stated that he obtained it in order to file a police complaint. Then, after some questions from the panel, he stated that he had asked a friend to obtain a new medical certificate because the one originally issued was misplaced at his friend's home. [46] I have serious doubt concerning the incident alleged to have occurred in XXXX 2014. In this context, even if this document has value, it does not establish that the injuries were incurred in the context alleged. Return to Haiti incompatible with alleged fear [47] The appellant obtained a United States visa on October 31, 2014. He stated that he stayed in the United States from XXXX 2015 to XXXX 2015. He justified his return to Haiti by the fact that he had debts to repay. The RPD considered that his testimony as to his reasons for returning was not credible because the appellant states in the BOC Form that he returned to Haiti because he thought the situation was going to improve. The RPD also drew a negative inference from the behaviour of the appellant, who was safe in the United States but returned to Haiti, where he was allegedly threatened with death due to his sexual orientation. [48] On appeal, it was submitted that [translation] "the problem is not the reasons for this return but the fact that the appellant decided to return to Haiti when threats had already been made against him" and that "when he left his country in XXXX 2014, despite the threats, the appellant did not fear for his life to the point of wanting to seek protection."17 [49] I am surprised by the statements in the memorandum to the effect that the appellant did not fear for his safety in XXXX 2014 due to his sexual orientation to the point of applying for asylum. [50] The appellant asserts that his life is in danger in Haiti because homosexuals cannot live openly. At the hearing, he stated that he had been ostracized and marginalized when he was young because of this. He states in the BOC Form that after a customer overheard a conversation he had had with friends at the XXXX XXXX, his life was no longer the same. He had to take refuge at a friend's home for several months to ensure his safety. He also states that homosexual friends encountered problems in 2013. In this context, I determine that the RPD did not err in considering that this return to Haiti undermined the credibility of his assertions regarding the alleged problems and his declared sexual orientation. [51] I do not believe the appellant's testimony to the effect that he stayed in the United States until XXXX 2015. [52] Examination of his passport reveals that he left Haiti on XXXX XXXX, 2014, and was admitted to the United States that same day.18 A stamp in his passport shows that he re-entered Haiti one month later, on XXXX XXXX, 2014.19 I seriously doubt his explanation that the authorities made an error by placing this stamp in his passport20 and that he had asked them to correct it. The other stamps in the passport indicate an exit from Haiti on XXXX XXXX, 2015, and an entry into the United States on the same day.21 Contrary to what the appellant stated at the hearing, I do not see an exit stamp from the United States in XXXX 2015.22 Inconsistency in the evidence with regard to the places of residence [53] The appellant stated that he had to go into hiding at a friend's home on two occasions. During the first, from XXXX XXXX, 2014, to XXXX XXXX, 2014, he stayed with his friend in XXXX after men from the government beat him up.23 [54] He testified that upon returning to Haiti in XXXX 2015 he lived with a friend until he left again in XXXX 2015. However, under question 12 in the IMM 5669 form, it is indicated that the appellant always lived at the same address, rue Bellot in Fontamara, from XXXX 2007 to XXXX 2015, when he left Haiti permanently.24 [55] The inconsistencies are numerous, and, when considered cumulatively, they lead me to seriously doubt that the appellant had problems in Haiti for the reasons he gives. In this case, I do not have substantial grounds to conclude that the decision rendered is not correct. Appellant's manner of testifying [56] Lastly, although the RPD did not mention this in its decision, I consider that in several instances the appellant gave testimony that was not spontaneous. I noted that at times he did not directly answer the questions put to him by the panel. For example, I note his hesitant testimony when questioned regarding the date on which his father allegedly threatened him. In addition to omitting this event from the BOC Form, the appellant did not respond directly to the panel's question. [57] My doubts concerning the appellant's assertions are compounded by these factors. As indicated by the RPD, a series of factors, when considered cumulatively, provides reason to seriously doubt the appellant's assertions. CONCLUSION [58] For these reasons, the appeal is dismissed. [59] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely that the appellant XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection. (signed) Maria de Andrade Me Maria De Andrade May 4, 2021 Date IRB translation Original language: French 1 P-2, Appellant's record, Appellant's memorandum, page 31. 2 Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, Immigration and Refugee Board of Canada (IRB), effective date May 1, 2017 (SOGIE Guideline). 3 SOGIE Guideline, IRB, effective date May 1, 2017. 4 P-2, Appellant's record, Appellant's memorandum, page 14. 5 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 6 P-2, Appellant's record, Appellant's memorandum, page 19. 7 Kandiah v. Canada (Minister of Citizenship and Immigration), 2005 FC 181; Ayaichia v. Canada (Minister of Citizenship and Immigration), 2007 FC 239. 8 P-2, Appellant's record, Appellant's memorandum, pages 20-21. 9 Recording of Refugee Protection Division (RPD) hearing held on June 27, 2019, from 17:42 to 28:11. 10 P-2, Appellant's record, Appellant's memorandum, page 22. 11 P-2, Appellant's record, Appellant's memorandum, page. 23. 12 SPR-1, RPD record, page 65. 13 SPR-1, RPD record, page 80. 14 SPR-1, RPD record, page 79. 15 Recording of RPD hearing held on June 27, 2019, from 58:57 to 59:12. 16 Recording of RPD hearing held on June 27, 2019, from 1:27:13 to 1:29:33. 17 P-2, Appellant's record, Appellant's memorandum, page 23. 18 SPR-1, RPD record, pages 66 and 67. 19 SPR-1, RPD record, page 66. 20 Recording of RPD hearing held on June 27, 2019, from 1:38:50 to 1:40:29. 21 SPR-1, RPD record, pages 66 and 67. 22 Recording of RPD hearing held on June 27, 2019, at approximately 1:40:29. 23 Recording of RPD hearing held on June 27, 2019, at approximately 1:33:25. 24 SPR-1, RPD record, page 53. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-04804 RAD.25.02 (January 2020) Disponible en français 12 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