MB5-03765

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 : MB5-03765 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 at Montréal, Quebec Appel instruit à Date of decision May 16, 2016 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois 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 INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Haiti, is appealing against the Refugee Protection Division (RPD) decision rejecting his refugee protection claim. [2] He is not submitting any new evidence, nor is he requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant lived in Port au Prince. He was an employee of and XXXX for the XXXX XXXX XXXX, for XXXX. He was then allegedly employed by the XXXX XXXX. He was purportedly thought to be wealthy because of those jobs. [5] The appellant allegedly had an antagonistic relationship with someone named XXXX, who lived in his area and who had purportedly asked for a loan since the appellant had a good job. He allegedly refused to lend the money and supposedly began receiving death threats from XXXX. [6] The appellant believed that he was part of a criminal gang. [7] The appellant was then purportedly approached by the leader of the XXXX XXXX gang, who supposedly came to see him and demanded that he pay a certain sum of money every two weeks. [8] The appellant apparently paid a smaller amount on two occasions and then stopped paying altogether. The gang then allegedly started harassing the appellant. He allegedly went to file a complaint with the police and the prosecutor. [9] XXXX was then allegedly arrested. [10] The appellant supposedly came under gunfire when he was on a motorcycle taxi. He fell off the taxi and was allegedly attacked and robbed; the attackers supposedly told him he had money because he worked for the XXXX XXXX. [11] When he made an amendment to his Basis of Claim Form (BOC Form), sent to the RPD on August 6, 2015, the appellant added that XXXX was in love with his sister and had followed her and hit her as well as their mother. After that, the appellant went to the police and he was afraid to speak out against the gang. [12] The appellant changed his telephone number. He moved frequently and in XXXX he spent two months in Saint-Domingue. [13] XXXX, once arrested, spent two days in prison. He then allegedly threatened the appellant's sister. [14] On XXXX XXXX, 2015, the appellant obtained a Canadian visa in the context of qualifying for the XXXX XXXX XXXX in XXXX. [15] He left his country on XXXX XXXX, 2015, and arrived in Canada that same day. He claimed refugee protection on June 9, 2015. RPD DECISION [16] The RPD rendered a negative decision, determining that the appellant was not credible with respect to the following points: - The appellant contradicted himself with respect to the extortion he faced from the leader of the XXXX XXXX gang. He stated that he had never seen him before, but in his BOC Form, he writes that the leader had come to see him to extort money from him. - There is an inconsistency and discrepancy concerning the complaint that the appellant claimed to have filed with police after he stopped making payments to the gang in 2013 and was threatened by them. The appellant's complaint was filed two years later, in XXXX 2015. In addition, the complaint does not mention that the appellant was the victim of extortion. The RPD drew a negative inference with respect to credibility. - The appellant failed to indicate in his BOC Form and the amendment that he had come under gunfire on the part of criminals sent by XXXX on XXXX XXXX, 2015, which is included in the complaint from XXXX XXXX, 2015 (see RPD record, pages 110 and 111). - On XXXX XXXX, 2015, the police sent XXXX a summons (see RPD record, page 119) for a court date on XXXX XXXX, 2015. However, according to the appellant, the police came to his neighbourhood on XXXX XXXX XXXX 2015, in order to arrest XXXX. The RPD concluded it was inconsistent that the police would make the effort to arrest XXXX on the same day they had sent him a summons. - The RPD found that the appellant was not credible with respect to the fact that he allegedly lived in different locations starting in 2013, after he had received death threats. The appellant did not indicate in the Schedule (see RPD record, page 39) that he had lived in different locations starting in 2013. - The RPD found the appellant's allegation that he had been attacked and robbed by unknown individuals on XXXX XXXX, 2015, to lack credibility because his passport indicates that he was in the Dominican Republic from XXXX XXXX to XXXX, 2015. [17] For these reasons, the RPD did not believe the appellant's story. That being the case, it did not grant any probative value to the copies of the documents submitted as evidence (see RPD record, pages 109 to 119). APPELLANT'S MEMORANDUM [18] The appellant is of the opinion that the RPD erred in its assessment of his credibility by focusing on secondary elements and by not considering the appellant's explanations. [19] The RPD also failed to analyze the prospective fear. [20] The contradiction between the written version stating that XXXX came to ask him for money and to threaten him and his testimony to the effect that he had never seen him and that it had allegedly taken place via telephone is due to an interpretation error. [21] The fact that the police report does not mention the extortion the appellant experienced and instead focuses on the assaults that his sister and mother experienced with XXXX can be explained by the fact that the appellant was more concerned with his family's safety and protection than his own. [22] The date XXXX was arrested is not overly important. The appellant is not the individual who was arrested, so it is possible that he does not remember the exact date of the arrest. The arrest is documented by the evidence in the record. [23] The RPD erred by not accepting the appellant's explanations with respect to the Dominican Republic stamps in his passport. The RPD found that the appellant was not credible in terms of the alleged attacks that took place on XXXX XXXX, 2015, because his passport indicates that on that same day he was outside of the country, in the Dominican Republic. The appellant submits that it is possible that his boss had his passport stamped at the border without the appellant there simply to support his visa application by adding a return trip. Haiti and the Dominican Republic are corrupt countries, so it is possible. [24] The RPD erred by not analyzing the prospective fear connected to the appellant's work with XXXX (as a XXXX) and the XXXX XXXX XXXX. Working with foreigners can be the source of issues with extortion, kidnappings and attacks in Haiti. The panel failed to consider that evidence. THE RAD'S ROLE [25] The RAD is an appeal tribunal for RPD decisions. [26] Federal Court decisions have established that the RAD is a "specialized (if not overspecialized) tribunal" (see Alvarez)1 and that Parliament conferred "a true appellate function on the RAD...which sits on appeal of the decisions of another administrative tribunal." The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [27] The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93, paragraph 70) that the RPD, having heard the testimony, may have an advantage with regard to credibility. ...there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [28] It is up to the RAD to determine in its analysis whether the RPD had an advantage owing to the fact that it heard the testimony, and in doing so, to see what degree of deference the RPD should be afforded in that regard. [29] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review to be applied by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [30] Accordingly, the standard of review that the RAD should apply is that of correctness, except when the finding reviewed concerns an issue of credibility with regard to which the RAD believes it should show deference. [31] The RAD will consider in its analysis all the evidence, including the testimony. It will determine whether the RPD's decision contains errors of fact, of law, or of mixed fact and law, and whether these are determinative to the outcome of the case and mean that the decision cannot be upheld using the correctness standard of review. In this case, the RAD will defer to the RPD's analysis on matters of credibility, as it had the advantage of hearing the testimony and seeing the appellant. [32] The RAD will intervene as necessary in accordance with subsections 111(1) and 111(2) of the IRPA. ANALYSIS [33] In its analysis, the RAD considered all the evidence, including the recording of the RPD hearing. [34] It appears to the RAD, having analyzed the relevant points, that the RPD did not commit an error that requires its intervention. [35] The first contradiction the RPD addressed was the fact that during the first threat of extortion the appellant allegedly faced from the leader of the gang, he stated that he had never seen the leader, that it took place via telephone; however, in his written story (BOC Form), he writes that the individual came to see him (in his memorandum, the appellant does not seem to differentiate between XXXX and the person who carried out the extortion, but these are two different individuals, according to the evidence in the record). When confronted, the appellant explained that it may be confusing because of how he had written it, but that he had wanted to say that it took place over the telephone because he had never seen him face to face. [36] The RAD is of the opinion that the negative inference drawn by the RPD does not constitute an error requiring its intervention. [37] The BOC Form indicates that he [translation] "came to see me and threatened me." The appellant stated that he had received help from an interpreter. Nevertheless, given that the amendments to the BOC Form were provided several days before the hearing, it is reasonable to believe that if the error had mistakenly been made, it would have been corrected and would have been part of the amendments made to the BOC Form a few days before the hearing, which is not the case. [38] That aspect of his credibility is not secondary to the assessment of credibility. In fact, that is the very essence of the appellant's problems, which only get worse. [39] The RAD is of the opinion that the RPD did not err by drawing a negative inference from the fact that the police complaint (see RPD record, pages 110 and 111, complaint from XXXX XXXX, 2015) did not indicate that the appellant had faced extortion and threats from XXXX (the appellant states that XXXX is part of the XXXX XXXX gang). That complaint refers only to the problems his sister had with XXXX and the fact that he was jealous. [40] In his memorandum, the appellant states that he was more concerned with his sister's and mother's safety that his own, which is why he did not mention the threats that he had received from XXXX. The appellant also stated that he did not file a complaint about it because he was afraid of XXXX. [41] That response is inconsistent, as noted by the RPD, because if he was afraid of XXXX and did not want to file a complaint against him, why, in this case, make a complaint in his sister's name? In addition, the RAD notes that the appellant did not mention initially, in his BOC Form, that his sister had also had problems with XXXX. It was added as part of an amendment. That is an element that is important and that makes this part of the story more inconsistent. The appellant states in his BOC Form that he went to the prosecutor to complain after he had received threats, but in fact he never went to file a complaint about his problems or about what he was supposedly experiencing. That is not credible and the RPD did not err on this point. The RAD adds that the addition to the story in the amendment about his sister allegedly having problems with XXXX because he was jealous seems inconsistent with the flow of the story. [42] That element is very important because, if we believe the amendment (which indicates that the mother and sister were assaulted), it means that the whole family had problems with this individual. [43] When questioned on that point, the appellant explained that it was when he met with his lawyer that he provided details on these points, and he had not done so earlier because he had not received advice. [44] The RAD is of the opinion that if the appellant were truly afraid of XXXX and had been threatened by him, and if all that had taken place within the broader context of the whole family's problems, he would have mentioned this in his BOC Form. [45] The RPD found that the appellant lacked credibility with respect to his testimony about the date XXXX was arrested. The appellant stated that it was XXXX XXXX, 2015, and then, after being questioned by the RPD, he indicated that it was XXXX XXXX, 2015. In the appellant's opinion, it is not overly important and it is documented by the evidence in the record. It is plausible that the appellant confused the dates because he did not personally experience the event. [46] The RAD is of the opinion that this credibility issue is more significant than the appellant has suggested. As the RPD pointed out, it is part of a broader issue with consistency. The RPD found that the appellant was not credible because the day that XXXX was arrested, XXXX XXXX, 2015, was the same day that a summons has been sent to him. He was summoned to a court date on XXXX XXXX XXXX 2015, with the prosecutor at the civil court in Port-au-Prince (see RPD record, page 119). The RPD did not believe that the authorities would send the aggressor a summons to appear three days later and then arrest him. [47] The RAD agrees. It is inconsistent, contradictory even, for the authorities to issue a summons on the same day that they arrest an individual if nothing new has transpired. However, nothing in the evidence indicates that the appellant or his sister were allegedly attacked or threatened again after XXXX XXXX, 2015, which would then require a tougher approach. [48] Therefore, the appellant is not credible and the RAD is of the opinion that the RPD did not err. [49] Its decision is comprehensive and its analysis is well supported and not based on accessory or peripheral details but rather on key elements. [50] The sum of the credibility issues raised leads to the conclusion that the appellant is not credible. [51] The RAD is of the opinion that the appellant did not demonstrate that his allegations are well founded. The RPD did not err by failing to analyze certain elements, such as the fact that since the appellant was working for foreigners, he could have been the victim of extortion. The RAD concludes that the RPD conducted the analysis within the context of appellant's alleged fear and reasons, and he was not found to be credible on those points. [52] The RPD did not err in the matter and it did not commit any error requiring the RAD's intervention. [53] The RPD rendered the correct decision. REMEDY [54] For these reasons, the RAD confirms the determination of the RPD, namely 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. [55] His appeal is dismissed. Roxane Cyr Roxane Cyr May 16, 2016 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-03765 9 RAD.25.02 (2014.09.11) Disponible en français