MB8-09889

RAD File No. / No de dossier de la SAR : MB8-09889 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, QC Appel instruit / entendu à Date of decision May 1, 2019 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the person who is the subject of the appeal Teodora Vassileva Manova 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 citizen of Haiti, is alleging that she fears returning to her country of nationality because the supporters of the Famni Lavalas (FL) party attacked her. She stated that, because of her husband's association with the Parti haïtien Tèt Kale (PHTK) [Haitian tèt kale party], FL supporters wanted to beat her to death. She left her country on XXXX XXXX, 2015, for Brazil. She arrived in the United States on XXXX XXXX XXXX 2016, where she claimed asylum. In the end, she arrived at the Canadian border on July 18, 2017, in order to claim protection from the authorities in our country. [2] The appellant is asking the Refugee Appeal Division (RAD) to set aside the decision rendered by the Refugee Protection Division (RPD) on April 3, 2018, and to render a decision that determines that the appellant is a Convention refugee or a person in need of protection. [3] The appellant is not asking to submit new evidence under subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and does not want a hearing to be held under subsection 110(6) of the IRPA. [4] The Minister's representative did not intervene on appeal. [5] The RPD rejected the appellant's claim for refugee protection because the first-level member found that her account of persecution and risks was not credible. [6] On appeal, the appellant argues that the RPD erred in its determination regarding the basic issue of her fear of persecution in her country, Haiti. DETERMINATION [7] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination, namely, that XXXX XXXX Estimable is neither a "Convention refugee" nor a "person in need of protection" within the meaning of sections 96 and 97 of the IRPA. [8] The appeal is dismissed. REFUGEE APPEAL DIVISION'S ROLE AND ANALYSIS [9] For questions of fact, law, and mixed fact and law, the RAD must apply the standard of correctness in accordance with Huruglica.2 [10] The panel conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, in order to form its own opinion about this refugee protection claim and to determine whether the decision rendered by the RPD was correct. [11] Having reviewed all the testimonial and documentary evidence on the record, the RAD has arrived at the same conclusion as the RPD, namely, that the appellant is not credible. [12] The RAD would like to emphasize from the outset that the counsel on record did not submit all the documents according to the IRB's rules, but rather on the day before the hearing, that is, on Friday at 4:15 p.m., for a hearing on Monday morning. When the hearing started, the member had not yet received the exhibits. Moreover, on the morning of the hearing, she asked for a witness to be heard (the appellant's husband). This work left the panel surprised, particularly since the appellant testified that she had previously submitted the exhibits. The counsel pointed out that she was waiting for all of the documents before submitting them. The RAD is of the view that the counsel deprived the panel of appropriate preparation in the case because the member had to take a break to review the evidence. [13] Regarding the document with the excerpt of minutes from the clerk of the peace court in Port-au-Prince on XXXX XXXX, 2015, and the copy of the [translation] "complaints report" of XXXX XXXX, 2015, these documents are riddled with spelling and grammar errors. It is enough to mention the complaint report, which refers to an event that occurred on XXXX XXXX and was reported the same day, but that two people in authority signed the document on XXXX XXXX, 2015. The RAD, like the RPD, does not grant any probative value to these two exhibits. [14] It should be emphasized that the appellant testified at the start of the hearing that her information form was truthful, complete and correct. She stated that it was her husband who was involved in the PHTK party. According to her testimony, member meetings for this party took place at her mother's restaurant and she served meals there. This summarizes her political involvement. However, at the hearing, she indicated that she was actively involved by distributing leaflets in her area. Moreover, there was no reference in her account to the problems allegedly experienced by her husband and that led her to leave her country. She was asked to explain this important omission. The appellant indicated that she thought that she could explain it at the hearing. She added, to try to answer the first-level member's questions, that it was her husband's account and not hers. Given that her husband's alleged problems relate to her to such an extent that they decided to leave the country to escape these problems, this significant mention of her husband's problems should have been discussed in her account. Moreover, the question in the form is clear. The person must describe all the problems experienced and challenges faced by members of his or her family. This greatly undermines her credibility. [15] Aside from this significant omission as discussed above, the appellant's husband, who testified in this case, stated that he no longer has ties to the PHTK and politics in general in Haiti. This contradicts the appellant's remarks, in which she indicated the contrary, that is, that her husband was still a supporter of this party and that he would not leave it. This again undermines the appellant's case. [16] Still on the subject of her political involvement, the appellant stated in her memorandum that the [translation] "reader can fully grasp that the appellant and her family were supporters of PHTK." She added that her oral testimony clarified her account. First, her account that was submitted does not mention that she is an active member of this party. She worked in her mother's restaurant and served the people who held meetings there for the FL party. Her husband is an active member, according to the account submitted. She added that she handed out leaflets in the area, which contradicts her account. She testified that she was a supporter and that she was an active member of the FL party. Aside from this glaring contradiction with her account, it contradicts the IMM-5669 form, in which she replies [translation] "not applicable" to the question of whether she was a member of any type of organization. [17] She was asked to explain this information that was at the very least contradictory. The appellant testified that she told this to the woman and that it was not necessary to mention her membership in the party because she only served clients. She added that [translation] "you'll reply to the judge if he asks you questions." Her contradictory testimony regarding her involvement in the political party and the fact that it was not indicated in the above-mentioned form greatly undermines her credibility. She indicates in paragraph 14 of her memorandum as follows: [translation] "it is not correct to find that there was any type of omission or contradiction." It is clear that the testimony heard, the account submitted and the forms completed contradict each other and, as a result, greatly undermine the appellant's credibility. The RPD did not err on this point. [18] A final element was raised in the memorandum, that is, the places where she lived, in which it is indicated that [translation] "a careful reading of the appellant's account shows that it was not completely silent in this respect." She added that her account includes a mention indicating that she left her region. It is written: [translation] "[p]eople from my neighbourhood called me to warn me so that I could get away and find safety. While I was hurrying up to escape far from my home they found me and beat me to death." [19] The testimony heard indicates that she was in hiding in two places before leaving the capital city to travel to Brazil. This information is missing from her Basis of Claim Form. Again, she was asked to provide explanations for this new omission, and she stated that she had told this to the interpreter. It is clear that the information regarding the places of residence are absent from the information form. She added that she told the interpreter. Although she may have told the interpreter, we must note that this information is missing. Despite the full translation of the form by the interpreter for the appellant and the support given by her counsel in preparing her case, the information regarding the places are not included in the form. Similarly, in document IMM-5669, in response to question 12, where it asks the places where the person lived, the two cities where she alleges to have stayed are not included. [20] The RAD agrees with the RPD's findings that the account of alleged persecution is not credible. [21] For the foregoing reasons, the RAD finds that the RPD rendered the correct decision. REMEDY [22] For these reasons, the RAD confirms the RPD's determination that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [23] The appeal is dismissed. (Signed) Michel Jobin Michel Jobin May 1, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No. de dossier de la SAR : MB8-09889 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français