MB9-21516

RAD File No. / No de dossier de la SAR : MB9-21516 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 August 24, 2020 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal Me Mark Gruszczynski 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 alleges that he is afraid to return to his country for fear that members of the ruling party, Parti haïtien Tèt Kalé (PHTK), and criminals associated with it will come after him because he was the head of engagement for the Fanmi Lavalas (FL) opposition party during the election campaign leading up to the 2015 and 2016 elections. [2] On September 9, 2019, the Refugee Protection Division (RPD) rejected the appellant's refugee protection claim, finding that he was not credible with regard to his political profile or the alleged events owing to significant omissions in his written account. The RPD also concluded that the appellant's behaviour was inconsistent with his alleged fear. [3] The appellant is appealing the RPD's decision. He submits that the RPD's decision is based primarily on the fact that he is no longer in any danger in Haiti and that his testimony was impacted by contradictions and lacks credibility, which is erroneous. [4] In my opinion, the determinative issue in this appeal is whether the RPD erred in its finding as to the appellant's credibility. After a full and independent analysis of the evidence presented, I find that the appellant is not a credible witness and that the RPD's decision is therefore correct. DETERMINATION OF THE APPEAL [5] The appeal is allowed. I refer the matter to a differently constituted panel of the RPD. ROLE OF THE REFUGEE APPEAL DIVISION [6] The Refugee Appeal Division (RAD) must apply the correctness standard in accordance with the Federal Court of Appeal's decision in Huruglica.1 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.2 I am of the opinion that the RPD did not have any meaningful advantage in this case. As a result, I will conduct my own analysis of the record, which includes listening to the recording of the hearing, applying the correctness standard of review to determine whether the RPD erred. ANALYSIS OF THE MERITS OF THE APPEAL i) The appellant's political profile [7] The RPD drew a negative inference from the fact that the appellant did not submit a membership card for the FL party, and this served to undermine the appellant's political profile. It did not consider the appellant's response that the party does not give them out to be truthful, given that the RPD has expertise in refugee protection claims made by Haitians and has seen FL membership cards in other cases in the past. [8] The appellant submits on appeal that the RPD breached procedural fairness by not giving him advance notice before using any information or opinion that was part of its specialized knowledge concerning the FL and membership cards, in violation of rule 22 of the Refugee Protection Division Rules, so that he had the opportunity to make representations on the reliability and use of the information. [9] It is true that this rule provides that before using any information or opinion that is within its specialized knowledge, the RPD must notify the claimant and give him the opportunity to make representations on the reliability and use of the information or opinion and provide evidence in support of his representations. After listening to the recording of the hearing, I note that this was not done by the RPD.3 This is an error. [10] In addition, I note that the RPD states in its decision that the documentary evidence does not mention that the FL does not provide cards to its members and that, since political parties in Haiti normally give out membership cards, it would therefore expect the objective evidence to point out an anomaly such as the fact that one of the most important political parties, and part of the official opposition, does not provide membership cards. In my opinion, this conclusion is somewhat extreme considering that, even though Tab 4.15 of the National Documentation Package on Haiti concerning major political parties indicates that some political parties issue membership cards and others do not, it states that for the FL, [translation] "[t]o join this party, a person needs only to attend, alone or in a group, a meeting of a cell (called 'Ti Fanmi') that validates the membership through a recruitment committee."4 [11] Even so, I am of the opinion that these errors by the RPD are not fatal since other problems were noted in the appellant's testimony that cast doubt on the credibility of his political profile. [12] For example, he took the trouble to indicate in his Basis of Claim Form (BOC Form) that it was when he attended an FL party meeting, which allegedly took place in summer 2015, that he became interested to the point that he was convinced to become a member and get involved, even though he had never been involved in politics before. Yet, he was unable to state what made an impression on him at this meeting and was unable to speak spontaneously about his participation at this meeting. Given the importance of this meeting for his alleged political involvement within the FL, I find that this undermines his credibility with regard to his alleged political profile. [13] The appellant testified that the meeting he attended in summer 2015 was held after the announcement that the second round of voting in the presidential election had been cancelled and that the party platform for the rest of the campaign was discussed at the meeting. However, according to the documentary evidence and his subsequent statements at the hearing, the second round of the presidential election was cancelled in June 2016,5 that is, one year after the meeting in summer 2015. The appellant explained this contradiction by stating that he had been confused because another meeting had been held in June 2016. Yet, this was referring to the meeting in summer 2015, the first one he attended, which has special significance in his account since it was what initiated his political involvement. [14] Even though he alleges that he was the head of engagement for the FL party during the election campaign leading up to the 2015 and 2016 elections, the appellant was also unable to spontaneously state what his party's key election promises were. In my opinion, given his alleged profile and role within the party, this inability to spontaneously explain the party's promises undermines his credibility. Moreover, although the appellant eventually stated, after being given several opportunities by the RPD, that the FL's promises were to get state institutions in order, make the country safer and increase access to education, apart from the last promise concerning education, this does not correspond to what is indicated in the documentary evidence concerning the FL.6 The party's promises were actually to build public housing, schools and hospitals, to provide continuous electricity to various sectors in the south of the country, to continue roadwork and construction, and to increase access to education.7 When confronted by the RPD, the appellant could not explain this dichotomy between his testimony and the objective evidence. Given his alleged role and involvement in his party's election campaign, his credibility is undermined with respect to his political profile. [15] In my opinion, although other problems were identified by the RPD relating to his political profile, I consider those mentioned above to undermine the credibility of this profile. In other words, it is my opinion that the RPD did not err by concluding that, because of the problems analyzed above, the appellant failed to establish his political profile on a balance of probabilities. ii) Omissions relating to death threats and a threatening incident [16] The RPD was of the opinion that the appellant did not satisfactorily explain the omissions noted relating to the alleged death threats and threatening incident against him. [17] The appellant states in his BOC Form that he received anonymous death threats by telephone as soon as he became the head of engagement for the FL, but he did not mention these threats during his testimony. I am not satisfied with his explanation that he did not mention them because they were anonymous telephone calls received in 2016 and because he did not take them seriously at first since it happened during the election period. The appellant knew at the time of the hearing that they were serious threats because he was allegedly forced to leave Haiti as a result of threats to his life due to his alleged political activity. What is more, the BOC Form states to explain any threats in detail, such as when they occurred and who caused them, and receiving death threats is a serious matter. Contrary to what is suggested in his memorandum, it is not sufficient to simply mention having received death threats in general without providing details. In this context, I agree with the RPD that this omission undermines the appellant's credibility and that he did not establish that he was threatened as alleged. [18] The appellant testified that in March 2017 an unknown vehicle approached him, that the occupants identified him as an FL XXXX and followed him, and that they fired shots in the air. He explained to the RPD that he omitted this incident in his BOC Form because he did not know how to connect the events and because he thought he could provide details at the hearing. In my opinion, this explanation does not satisfactorily explain the omission identified, given that this is a violent incident, which, according to the appellant's testimony, made him realize for the first time that his life was at risk in Haiti and that the individuals were referring to his political activities. In addition, the appellant, who is XXXX, an educated man who completed five years of university, signed his BOC Form stating that the information it contains is complete and that his declaration has the same force and effect as if made under oath. Consequently, I am of the opinion that this omission further undermines his credibility and that he failed to establish that this incident occurred. The RPD did not err. [19] In my opinion, there are enough problems in the appellant's written account at this point to find that he lacks credibility with regard to the death threats and the incident of March 2017. The RPD did not err by finding that he is not a credible witness. iii) Behaviour inconsistent with the alleged fear [20] The RPD concluded that the appellant delayed claiming refugee protection in Canada and that this reflects a lack of subjective fear on his part. The appellant submits on appeal that the explanation provided at the hearing was satisfactory but that the RPD rejected it without reason. He explained to the RPD that it took some time for him to decide to make this claim and he had trouble leaving his family behind but that, after the demonstrations in February 2019, he realized that he could no longer return to Haiti safely. He adds on appeal that he had a valid visa that allowed him to stay in Canada legally until May 2019. In my opinion, given the seriousness of the alleged risk to his life in Haiti, a country he states he fled in XXXX 2018 for fear of being killed there by the assailants he allegedly still fears, I am of the view that the appellant did delay claiming refugee protection in Canada since he arrived in late XXXX 2018 and waited until February 2019 to make his claim. That said, considering his explanations and the fact that, in my opinion, the delay was just over two months while he was legally in Canada, I do not consider this a determinative factor in the assessment of his subjective fear. I am of the opinion that there were already a number of more significant and determinative issues noted by the RPD, as mentioned above, to support its finding that the appellant lacks credibility. iv) The fire at the appellant's business [21] The RPD accepted and found credible the appellant's allegation that on July 8, 2018, criminals set fire to his business, which adjoined his house. Considering the previous findings and the fact that the criminals were not identified, I agree with the RPD that it was not established, on a balance of probabilities, that this fire had anything to do with his political activities. Consequently, I am of the opinion that the minutes of the peace court registry,8 noting a fire and that the appellant stated that the fire was started as a result of his political affiliation, do not change anything given that it is the appellant's own statement and that his political problems are not credible. [22] That said, I am of the opinion that the RPD should have analyzed the impact of this incident on the appellant's prospective risk under paragraph 97(1)(b) of the Immigration and Refugee Protection Act. Not having done so is an error. However, it is impossible for me to rectify this error without holding a new hearing to re-examine the evidence that was presented to the RPD, including the appellant's testimony related to the incident of July 2018. [23] As a result, I am of the opinion that I must refer the matter to the RPD for re-determination. CONCLUSION [24] The appeal is allowed. I refer the matter to a differently constituted panel of the RPD. (signed) Love Saint-Fleur Me Love Saint-Fleur August 24, 2020 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 3 Minutes 01:12:15 and following of the recording of the hearing before the Refugee Protection Division (RPD) on July 15, 2019. 4 SAR-1, National Documentation Package (NDP), Haiti, March 31, 2020, Tab 4.15: ?Haïti: Les principaux partis politiques [Haiti: major political parties]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. December 12, 2016, p. 12. This document is also in the NDP dated June 28, 2019. 5 SAR-1, NDP, Haiti, March 31, 2020, Tab 2.5: ?Rapport de mission en République d'Haïti du 26 mars au 7 avril 2017 [report on the mission to the Republic of Haiti from March 26 to April 7, 2017]. France. Office français de protection des réfugiés et apatrides. September 15, 2017, p. 18. This document is also in the NDP dated June 28, 2019. 6 Minutes 1:00:32 and following of the recording of the RPD hearing on July 15, 2019. 7 SAR-1, NDP, Haiti, March 31, 2020, Tab 4.18: ?The Fanmi Lavalas political party, including its leaders, political platform, geographic reach and activities; its relationship with the government; whether the party has ties to criminal gangs. Immigration and Refugee Board of Canada. February 10, 2017. HTI105745.FE. This document is also in the NDP dated June 28, 2019. 8 SPR-1, RPD record, Document 4, Exhibit P-1, p. 155. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-21516 RAD.25.02 (January 2020) Disponible en français 7 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