MB9-21941

RAD File No. / No de dossier de la SAR : MB9-21941 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 Souad Hamida 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 42 years old and married. His wife and children live in Haiti. [2] The appellant alleges that he cannot return to Haiti because in August 2015, when he was in charge of the XXXX XXXX XXXX XXXX XXXX, he prevented members of the Vérité [truth] party from XXXX XXXX XXXX XXXX XXXX XXXX. The appellant alleges that the party members wanted to take revenge on him. On August 13, 2015, an armed group came to his home; the appellant escaped through a window, but the attackers verbally threatened his wife and destroyed their dishes before leaving. The appellant alleges that he has never gone back to live at his home since that day. On August 16, 2015, the appellant alleges that the armed attackers returned to his home and physically assaulted his sister. [3] The appellant states that he took refuge at his father's home for six months in a place called XXXX, and then took refuge at a friend's home in Malok for one month before leaving Haiti for Brazil on XXXX XXXX XXXX 2016. The appellant stayed in Brazil for only two months. He then entered the United States illegally via Peru, Panama, Costa Rica, Colombia, Ecuador, Guatemala, Honduras, Nicaragua and Mexico. The appellant lived in the United States for one year. [4] On XXXX XXXX, 2017, the appellant entered Canada without a visa and made a claim for refugee protection. [5] The Refugee Protection Division (RPD) rejected his refugee protection claim on the basis of an internal flight alternative (IFA) in Les Cayes, Port-de-Paix or Cap-Haïtien. The RPD also noted some credibility issues with respect to his allegations. [6] The appellant argues that his appeal should be allowed because the RPD's reasons were unclear and because the RPD did not consider the objective evidence in its analysis of the first prong of the IFA test. [7] My role is to review all the evidence and determine whether the RPD rendered the correct decision.1 DETERMINATION [8] I dismiss the appeal. The RPD was correct in determining that the appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [9] After carefully listening to the hearing and reviewing all the documents on the record, I agree with the RPD that the claim should be rejected. In my view, the determinative issue is whether an IFA is available in Les Cayes, Port-de-Paix or Cap-Haïtien. The Refugee Protection Division's reasons are clear [10] The RPD identified some credibility issues during the hearing and noted that it did not find the allegations underlying the claim to be credible. However, the RPD noted that [translation] "in any event," the appellant could avail himself of an IFA. [11] The appellant argues that the RPD's reasons are contradictory because the RPD concluded that it did not believe his allegations, but concluded that, based on his allegations, an IFA was available. [12] I understand the appellant's point that the RPD could have been more careful in formulating its conclusions. However, its reasons are not ambiguous. The RPD did not believe the appellant's allegations because of credibility issues, but in the alternative, and out of an abundance of caution, the RPD wanted to note that, even if it had accepted all of the elements of the appellant's account, the appellant could avail himself of an IFA. [13] It should be noted that, according to the Federal Court, this approach is acceptable. In Sarker, the Court concludes that it is not necessary for the RPD to rule on the merits of the allegations before considering the issue of whether an IFA is available.2 Therefore, the RPD may assume that the risk of harm exists as described by the appellant in its IFA analysis. [14] In my opinion, the determinative issue in this case is the availability of an IFA and the appellant's allegations form the basis of this analysis. While I agree with the RPD that there are certainly credibility issues, I do not find them sufficient to conclude that all aspects of his story are a complete fabrication. [15] To conclude, the RPD's reasons are clear and I agree with the RPD's reasoning for each of its conclusions. However, I consider that the IFA is the determinative issue and, incidentally, certain elements of the appellant's story are not credible. In any event, the difference between my analysis and the RPD's analysis is of little significance since the outcome is the same. Credibility of the appellant's allegations [16] The appellant disputes that there was a major contradiction in his evidence or testimony. However, the appellant challenges only one of the RPD's credibility findings, regarding an omission from his Basis of Claim Form (BOC Form). [17] In his memorandum, the appellant argues: [translation] "At paragraph 26 of its decision, the panel criticizes the claimant for failing to state in his initial BOC Form that his wife continued to receive threatening calls on her cellphone after he left, and the appellant then explained that he had mentioned this to the interpreter, but that he did not include it in the initial BOC Form. In this regard, we submit to you that an amendment was filed within the legal time frame to remedy this error."3 [18] The RPD noted that the appellant had added this allegation to the amendment, submitted one week prior to the hearing, but the RPD still drew a negative inference based on the fact that the appellant failed to mention these threats when filling out his initial BOC Form. The RPD did not accept his explanation that it was the interpreter's fault, since question 2(a) specifically asks if the claimant or his family have ever been harmed, mistreated or threatened, and if his wife continued to receive death threats that she took seriously, it is not credible that the appellant failed to include this serious and material allegation. [19] I agree with the RPD's reasoning. In addition, the appellant's explanations for the threats received by telephone are confusing and inconsistent. The appellant explained that after the criminals associated with the Vérité party tried to find him at his home on August 13, 2015, he began receiving threats on his cellphone. At this point, the appellant went to live with his father for six months so that the criminals would not find him at his home. The appellant alleges that his father's house is a 40-minute walk from his home. He continued to receive threats on his cellphone while living at his father's home, but did not think of changing his telephone number. [20] The appellant told the RPD that, after spending six months at his father's home, he decided to relocate to his friend's home in Malok, a village that is an eight-hour walk from his home. 4 When the RPD asked why he decided to relocate to Malok, the appellant replied that it was because of the threats he was receiving by telephone.5 However, the appellant was receiving only threats on his cellphone, so he had no reason to believe that the criminals knew where he was physically located, and instead of simply changing his telephone number or turning off his telephone, he explained that he decided to move to a friend's home in Malok. [21] When the RPD asked if he continued to receive threats by telephone in Malok, the appellant replied: [translation] "When I was in Malok...I didn't receive any threats by telephone because Malok is an area where the signal is not very ... is not good. Because if you have a telephone there, you have to go and stand in an area to talk, say what you have to say and then for something else. So, being in Malok allowed me to get some rest, because ... because people ... because people do not find telephones to talk, because the person can say ... the person can call but there is no signal there."6 Therefore, it seems that the appellant preferred to relocate to a place where cellphones did not work instead of simply turning off his cellphone or changing his number. [22] Even less consistent is the fact that when he decided to leave Haiti for Brazil in XXXX 2016, he gave his wife his cellphone without changing the telephone number. The appellant alleges that his wife started receiving threats by telephone. When the RPD asked him when his wife received the last threatening call, the appellant replied that it was in January 2019. He explained that she received about a dozen calls from the time he left the country (in XXXX 2016) until the last call in January 2019. The appellant explained that his wife finally bought a new telephone with a new telephone number in January 2019 and that she has not received any other threatening calls since changing telephones.7 [23] In my view, keeping the same telephone number, a telephone number known by the criminals, from March 2015 to January 2019-almost four years-is not behaviour that is consistent with the appellant's alleged fear, and his explanations for not having changed it earlier are inconsistent and confusing. Therefore, on a balance of probabilities, I do not believe that the appellant and his wife received threatening calls between March 2015 and January 2019. [24] The RPD's second finding with respect to the appellant's credibility is that he failed to disclose in his BOC Form that stayed at his father's home for six months before moving to his friend's home in Malok for one month. In his memorandum, the appellant does not challenge the RPD's conclusion in this regard. [25] Like the RPD, I am of the view that this omission greatly undermines the credibility of his allegation that he relocated immediately after the October 13 attack. Question 2(d) on the BOC Form asks: "Did you move to another part of your country to seek safety?" The appellant states: [translation] "Yes, I went to Malok, a small town in the Artibonite region, to my friend XXXX XXXX XXXX home. I spent one month in Malok during which I had no problems. However, my friend could no longer accommodate me and staying in Malok forever is not possible because there is nothing there. I didn't have a job and I couldn't work in Malok due to the precariousness of the place. Therefore, I had no means of surviving there and I had no choice but to leave."8 [26] However, when the appellant testified before the RPD, he explained that he sought refuge at his father's home, in a place called XXXX, for six months before moving to his friend's home in Malok. When the RPD asked him why he also failed to mention his stay at his father's home in his address list on the IMM 5669 form, once again the appellant's explanations were inconsistent and confusing. [27] The appellant first testified that he failed to mention that he lived at his father's home because his father's place of residence does not have an address. He stated, [translation] "it's a place with gardens; there's no address. There is just the nickname for the area, known as XXXX, but there is no address. There is no address, so this is an area where there are gardens, where there is water flowing, there are horses passing by."9 [28] The RPD then reminded the appellant that he stated [translation] "no Malok address" (p. 79, No. IMM 5669) for the period that he lived in Malok, so he could have also stated [translation] "no XXXX address" for the period that he lived at his father's home. The appellant replied that he did not know that the area was called XXXX at the time, that he only learned about it afterwards in talking with his father. The appellant stated, [translation] "while I was talking to my father, it was my father ... because it was my dad who ... because XXXX is not indicated ... is not written anywhere ... is not written anywhere. It's the elders who ... who grew up, who spent their lives in the area, who are able to tell you, that's what it's called. It's when I was gone that I spoke to my father, and then I told to my father: [translation] 'what's that place called?' and that's when he told me it's called XXXX and I didn't know the name."10 [29] This explanation is inconsistent, especially because the appellant himself lived in that village for six months and because the appellant explained that his father had always lived in the same place-since his birth.11 It is not credible that he did not know the name of the place when he was filling out his forms. Therefore, the fact that he failed to mention that he relocated to that village greatly undermines the credibility of the allegation that he did not return to live at his home after the August 13, 2015, incident and before leaving the country in XXXX 2016. [30] Accordingly, I conclude, on a balance of probabilities, that the appellant did not relocate between August 2015 and March 2016 and that he did not receive threats during that period either. However, I accept the appellant's allegations that he was in XXXX XXXX XXXX XXXX XXXX in August 2015 and that criminals associated with the Vérité party visited his home on August 13, 2015. Analysis of the first prong of the internal flight alternative [31] The appellant challenges only the first prong of the IFA analysis. The appellant argues: [translation] "The panel failed to consider the appellant's fears of being relocated, regardless of where, given that Haiti is a small country and that criminals operate in networks. At paragraph 31 of its decision, the panel rejects this explanation from the appellant as unreasonable without having clear reasons for rejecting it."12 The appellant cites Tab 7.6 of the National Documentation Package (NDP) on Haiti, which explains how criminals or perpetrators can track their victims anywhere in Haiti. The appellant concludes, [translation] "thus, the IFAs proposed by the panel do not take into consideration the documentary evidence on Haiti that was presented at the hearing."13 [32] I disagree with the appellant. The RPD did not base its decision on the criminals' inability to track the appellant; rather, its decision was based on the fact that, according to the evidence on the record, the criminals have no motivation to track the appellant. Therefore, the fact that it states at Tab 7.6 that a certain criminal was able to track down his victim after 12 years through the network and by word of mouth does not mean that the criminals in this case would still be interested in the appellant. [33] I agree with the RPD's analysis that it is not credible that the criminals are still interested in the appellant, given that no one has visited or bothered his spouse to find him since he left. It goes without saying that if someone is wanted by persecutors, the persecutors would contact the family members of the person sought in order to find out his whereabouts. In addition, the document at Tab 7.6 of the NDP states that people close to victims, such as family, may also be targeted by an act of revenge.14 Thus, the RPD was correct to note as a salient factor that the appellant's family has not been bothered by his persecutors since he left. [34] Moreover, given my findings of a lack of credibility regarding the fact that the appellant received threats by telephone and the allegation that he relocated between August 2015 and February 2016, it is even less credible that the criminals associated with the Vérité party have an interest in the appellant at this time, since it appears that they had lost interest in him even before he left the country for Brazil in XXXX 2016. [35] For these reasons, I am of the opinion that the RPD did not err in its IFA analysis. CONCLUSION [36] I conclude that the RPD was correct in determining that the appellant has an IFA. The RPD was correct in determining that he would not face a risk of persecution or serious harm and that it would not be unreasonable for him to relocate there. Therefore, the appellant does not face a serious possibility of persecution or, on a balance of probabilities, would not be subjected to a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment in Haiti. [37] I dismiss the appeal and confirm the RPD's determination, namely, that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Jillan Sadek Jillan Sadek August 28, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Sarker, Ataur Rahman v. MCI, 2005 FC 353. 3 P-2, appellant's memorandum, paragraphs 32-33, appellant's record, p. 16. 4 At approximately minute 1h14 of the recording, and SAR-1, p. 28 of the record of proceedings on May 14, 2019. 5 At approximately minute 1h14 of the recording, and SAR-1, p. 28 of the record of proceedings on May 14, 2019. 6 At approximately minutes 1h17-1h18 of the recording, and SAR-1, p. 30 of the record of proceedings on May 14, 2019. 7 SAR-1, record of proceedings on May 14, 2019, p. 32. 8 SPR-1, appellant's Basis of Claim Form, Refugee Protection Division (RPD) record, p. 22. 9 At approximately minute 1h27 of the recording, and SAR-1, p. 34 of the record of proceedings on May 14, 2019. 10 At approximately minute 1h14 of the recording, and SAR-1, p. 28 of the record of proceedings on May 14, 2019, p. 34. 11 SAR-1, record of proceedings on May 14, 2019, p. 34. 12 P-2, appellant's memorandum, paragraphs 38-39, appellant's record, p. 17. 13 P-2, appellant's memorandum, paragraph 41, appellant's record, p. 18. 14 SPR-1, RPD record, Document 3, National Documentation Package on Haïti, March 29, 2019. Tab 7.6: HTII06117.FE, July 3, 2018: Acts of revenge committed by gangs or by other organized crime entities; ability of gangs or other organized crime entities to track down their targets, including those who return to Haiti after a long absence (2015-June 2018). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-21941 RAD.25.02 (January 2020) Disponible en français 9 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