MB8-00957

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 File No. / No de dossier de la SAR : MB8-00957 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision November 26, 2018 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the person(s) who is(are) the subject of the appeal Darius Constantin Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated December 18, 2017. He submits that the RPD erred in assessing his credibility by rejecting his version of the facts. [2] Under subsection 111(1) of the Immigration and refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination and dismisses the appeal. BACKGROUND Alleged facts [3] On his Basis of Claim Form (BOC Form), the appellant states that armed strangers arrived at his home on XXXX XXXX, 2017, and began firing shots in all directions and then left. The appellant reported the incident to the police, but no arrests were made. [4] Fearing for his life and possessing a U.S. visa, the appellant travelled to the United States on XXXX XXXX but did not seek asylum because he was fearful of U.S. immigration policies. In XXXX 2017, he travelled to Canada and filed this claim for refugee protection. [5] The appellant submits that his safety would be at risk if he returned to Haiti because he believes that the group of criminals is still there and could find him no matter where he might be. Moreover, in XXXX 2017, his spouse, still living in Haiti with his children, informed him that the armed group had returned to his home and fired shots while uttering the appellant's name. RPD decision [6] The RPD found numerous unsatisfactorily explained credibility issues with respect to the claimant's account. It also noted that there were significant omissions in his BOC Form. For example, the appellant alleges that the thugs left tracts bearing his name and even shouted his name while they were at his home. These facts, mentioned during his testimony, do not appear in his BOC Form. [7] Moreover, the RPD stated repeatedly during the hearing that the appellant's testimony regarding the incident was vague and laboured and contained few details. The appellant was not spontaneous and was at times hesitant and inconsistent. It also found an error in the police report that cast doubt on the authenticity of the document. GROUNDS OF APPEAL AND DECISION SOUGHT [8] In his memorandum, the appellant submits that the RPD erred in assessing his credibility by rejecting his version of the facts. He submits that he is a quiet and reserved person who nevertheless answered all the questions directly. He submits that his attitude at the hearing was more a reflection of a cultural difference and that the RPD was wrong to criticize him for not being more talkative. [9] The appellant also submits that the RPD's finding that he was making inconsistent statements about the hardships that his family is now experiencing in Haiti is unfounded. Rather, he submits that his confusion at the hearing was the result of remorse for having left his family in Haiti. [10] Lastly, as for the police report, the appellant submits that the date error noted by the RPD is likely due to a typing error and is therefore a minor error that is not sufficient to justify the rejection of his claim for refugee protection. [11] In conclusion, the appellant is requesting that the RAD allow the appeal, set aside the RPD's determination and allow the appellant's claim for refugee protection, or refer the file back to another RPD member and make any other order the panel may deem necessary. APPLICABLE STANDARD OF REVIEW AND ANALYSIS OF THE APPEAL [12] According to the case law, the RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule concerns situations where the RPD enjoys a particular advantage in assessing the credibility or weight to be given to the oral testimony it hears, in which case the RAD may apply the reasonableness standard, adapted to its own context.1 Should I find that deference is warranted, I shall explain how the RPD enjoyed a meaningful advantage with respect to the finding in question. DETERMINATION [13] Having conducted my own analysis of the evidence, namely, by reading the hearing transcript and the documentary evidence in the record, I find that the appellant's arguments have no merit and that the RPD did not err in assessing the appellant's credibility. My reasons are as follows. ANALYSIS Assessment of the claimant's credibility Flawed testimony [14] The RPD's finding that the appellant lacked credibility as a result of his flawed testimony appears to be well supported by the transcript; therefore, I find that the RPD did not err. There are no grounds for me to intervene. [15] When a witness has difficulty giving adequate and direct answers, the panel may draw negative inferences.2 In this case, the evidence shows that the appellant had difficulty recounting the main incident that is central to his decision to leave his country and his family. His description of what he had seen lacked details. He said that he did not know the thugs or their reason for coming after him. [16] Moreover, the RPD decision and the transcript show that the RPD had to repeatedly ask the appellant very direct questions for clarification and details, going so far as to remind him of the importance of being specific and detailed. It noted that the testimony was not detailed or specific, that it was vague, halting, laboured and even improvised at times, and that it lacked spontaneity on important aspects of the incident that was the very basis of the claim for refugee protection. Omissions [17] I am of the opinion that the RPD did not err in determining that the appellant's omissions undermine his credibility. [18] An accumulation of contradictions and omissions can be fatal to a refugee protection claimant's credibility.3 [19] In addition, the Board is entitled to draw negative credibility inferences from an unsatisfactorily explained contradiction between the BOC Form and the claimant's testimony.4 [20] In this case, the appellant stated that the thugs left tracts at his home that contained personal threats. Not only did he omit this significant point from his BOC Form, but he also could not show one of his tracts bearing his name when asked to do so. Yet, this is element is very significant. [21] The appellant also stated that the thugs were shouting his name as they were firing shots at his home. Again, this important information does not appear in his BOC Form. [22] The appellant's explanation that these omissions, the lack of detail and the lack of spontaneity in his testimony were due to cultural differences was rejected by the RPD, and rightly so, in my opinion. On reading the minutes and the documentary evidence in the record, I see no indication to that effect that would support this assertion. Documentary evidence [23] In my opinion, the RPD did not err in not giving any probative value to the Extrait des minutes du greffe du Tribunal XXXX XXXX XXXX XXXX [excerpt of the transcript from the XXXX peace tribunal registry]5 filed by the appellant in support of his refugee protection claim. [24] When the RPD asked the appellant how he had obtained the document, he was vague and hesitant. As well, the document contained a date error that the appellant failed to explain, and the appellant admitted that he had not even noticed it before the hearing. The appellant's vague and hesitant response and his difficulty in answering the RPD's question led the RPD to conclude that he lacked credibility, and it therefore gave the document no probative value. [25] The appellant submits in his memorandum that the date error is minor and therefore insufficient to reject the claim for refugee protection. [26] I have read the Extrait, and, in addition to the date error, I noted an entry that states that the appellant allegedly told the justice of the peace that he received threats from [translation] "two notorious thugs"; however, at the hearing, he testified that he did not know the thugs. I also noted a reference to [translation] "tracts" found on the property that, according to the Extrait of the justice of the peace, did not bear any name. Yet the appellant stated that the tracts contained personal threats. [27] Although discrepancies and contradictions considered individually many seem insignificant, when taken together in context, they may support a finding of lack of credibility.6 [28] Moreover, a factor that the RPD noted as having undermined the claimant's credibility is the fact that the appellant was unable to file a copy of the tracts left at his home when the thugs went there. The appellant also made no attempt to obtain a copy that he claims to have given to the police. [29] Yet, it is well established that the onus is on the person making the refugee protection claim to establish, on a balance of probabilities, the facts on which the claim is based.7 CONCLUSION [30] The various points analyzed above, considered as a whole, lead me to find that the appellant has not established, on a balance of probabilities, that he faces a serious possibility of persecution on one of the five grounds of the Convention. Moreover, he has not established that he would be personally subjected to any of the risks listed under section 97 of the IRPA if he returned to Haiti. [31] For these reasons, the RAD confirms the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection under subsection 111(1) of the IRPA. [32] The appeal is dismissed. (signed) Nicole Ladouceur Nicole Ladouceur November 26, 2018 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 78; Al Moussawi, Mohamad Noureddine v. Canada (Minister of Citizenship and Immigration), 2017 FC 441. 2 Josephine Ngoma Khuabi v. Canada (Minister of Citizenship and Immigration), 2012 F.C. 141. 3 Aguilar v. Canada (Minister of Citizenship and Immigration), 2012 F.C. 150, para. 42. 4 Grinevich et al. v. Canada (Minister of Citizenship and Immigration), No. IMM-1773-96. 5 Document 4 - Exhibit 1. 6 Rajaratnam v. Canada, (1991) 135 N.R. 300 (F.C.A.). 7 Arreaga v. Canada (Minister of Citizenship and Immigration), 2013 F.C. 977, para. 45. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-00957 7 RAD.25.02 (September 18, 2018) Disponible en français