MB7-02007

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 : MB7-02007 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 November 26, 2018 Date de la décision Panel Me Maria de Andrade Tribunal Counsel for the person who is the subject of the appeal Me Patrizia Ruscio 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 Haitian citizen, is alleging a well-founded fear of persecution by reason of her political activities. She alleges that she recruited for the "Platfom Desalin" (PPD) political party of Jean Charles Moïse and was threatened by opponents who wanted her to stop her political activities. [2] The Refugee Protection Division (RPD) rejected her refugee protection claim because her testimony was vague and she was unable to provide details about her work as a recruiter. In addition, her oral and written statements were contradictory regarding her membership in the PPD. The appellant is appealing against this decision and submits that the RPD erred in law and that its reasons are unreasonable and are not based on the evidence. [3] The appellant has produced as new evidence four documents, the admissibility of which will be determined based on the criteria set out in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) as well as the implicit criteria developed by the case law. [4] After examining the evidence, I find that the appellant has not established her allegations on a balance of probabilities. DETERMINATION [5] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD. SCOPE OF THE APPEAL [6] Except in cases where the credibility of the oral evidence is at issue and the RPD enjoys a meaningful advantage, the RAD must determine whether the RPD's decision is correct.1 If an error of fact, law or mixed fact and law was committed, the RAD must intervene using one of the means set out in sections 110 and 111 of the IRPA. If I owe deference to the RPD because it has a meaningful advantage, I will indicate it in my analysis. However, deference to the RPD does not in any way equate to blind endorsement of its findings.2 Admissibility of new documents [7] The appellant submitted as new evidence the following documents: 1. Article from the Internet entitled "Nationale #1, facture salée du décret Martelly-Paul" [National #1, high cost of Martelly-Paul decree], Le Nouvelliste, March 8, 2017 2. Article from the Internet entitled "3ième jour de guerre des Gangs à Grand-Ravine" [3rd day of gang war in Grand-Ravine], Haïti-Libre, February 1, 2017 3. Article entitled "Comprendre la timidité et les personnes timides" [Understanding shyness and shy people], http://romano-therapeute.fr/2013/03/05/ 4. Original exhibits P-1 to P-5 submitted before the RPD [8] The documents filed on appeal are not admissible as new evidence. Some do not meet the statutory requirements; others do not meet the implicit criteria developed by the case law. I therefore cannot hold a hearing. [9] The RAD may accept only evidence that arose after the rejection of the refugee protection claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection (section 104 of the IRPA). In Canada (Citizenship and Immigration) v. Singh,3 the Federal Court of Appeal states that the RAD may also be guided by the criteria established in Raza. Documents 1 and 2 [10] With regard to the articles numbered 1 and 2 taken from the Internet, the appellant did not provide full and detailed submissions explaining why she did not file Document 2, dated February 1, 2017, before the RPD prior to the rejection of the refugee protection claim (February 16, 2017),. This online article and the one dated March 8, 2017, do not meet the implicit criteria developed by the case law. They simply report that insecurity is a problem in Haiti, including in Grand-Ravine. Yet there is ample evidence in the National Documentation Package (NDP) describing the insecurity in the country, and in Grand-Ravine in particular.4 Document 3 [11] Document 3, entitled "Comprendre la timidité et les timides," does not meet the statutory criteria either. This document was published in March 2013 and is not accompanied by any submissions explaining why it was not submitted to the RPD prior to the rejection of the refugee protection claim. Document 4 [12] Document 4 does not constitute new evidence because exhibits P-1 to P-5 were in evidence before the RPD. MERITS OF THE APPEAL Manner in which the appellant testified [13] The appellant is basing her refugee protection claim on the fact that she was a [translation]"recruiter" for the Platfom Pitit Desalin party and that, in that capacity, she encouraged people to vote for that party. [14] In its decision, the RPD writes that the appellant's testimony seemed hesitant at various times and that she was visibly uncomfortable and upset when she was asked to provide details about how she went about convincing people to support the Platfom Pitit Desalin party. [15] The RPD noted that the appellant had trouble explaining her work as a recruiter and that after the break, when questioned by her lawyer, she changed her version of the facts to state that she was accompanied by her cousin when she worked and that he was the person who spoke to people. The RPD saw this as an attempt to explain her difficulty testifying about her work as a recruiter prior to the break. According to the RPD, [translation] "the claimant's body language clearly indicates that she is not telling the truth about her real motivation for staying in Canada." [16] The appellant argues that the manner in which she testified was due to her shyness. She submits that the RPD's findings are unreasonable and are not based on the evidence. [17] The RAD may show deference to the RPD's credibility findings when the RPD has a particular advantage compared to the RAD.5 In this case, given the RPD's findings concerning the manner in which the appellant testified, and because the RPD saw her testify, I find that it did have a certain advantage compared to the RAD. The case law recognizes that the panel that has the opportunity to observe a witness's demeanour or the spontaneity of their answers is in a better position to determine credibility.6 [18] In this context, I am of the opinion that this is a situation where I must show a degree of deference to the RPD's decision, because listening to the recording of the hearing does not put me in a position to conclude that the RPD erred in finding that the appellant seemed upset by the questions or that she was visibly uncomfortable. Nevertheless, the advantage enjoyed by the RPD is no reason for me not to conduct an independent analysis of the evidence in its entirety. [19] Upon listening to the recording of the hearing, I note that even though the member stressed to her that her testimony was vague, the appellant offered little explanation. She was unable to provide details about ideas or give examples of arguments she used with the people she approached to convince them to vote for the PPD.7 [20] The manner in which a witness testifies at the hearing affects their credibility. When they have difficulty answering questions, when they hesitate or when they are unable to provide details indicating, in this case, that the appellant did recruitment for the PPD party, this plants serious doubt in the decision-maker's mind and affects the credibility of the testimony provided.8 [21] The RPD did not err by noting that, after the break, the appellant's testimony was different when she was questioned about her work as a recruiter. I find that her explanations after the break, according to which she worked with her cousin and that he was the one who spoke to people, are insufficient to justify the change in her testimony. On this point, I point out that, prior to the break, the appellant repeatedly used the pronoun [translation] "I." At no time did she mention that her cousin accompanied her in her work as a recruiter. But there is more. Membership in the political party [22] The RPD did not err by noting that the appellant stated at the start of the hearing that she had been a member of the "Platfom Desalin" (PPD) political party of Jean Charles Moïse since 2014,9 even though at question 9 of form IMM-5669 which asks the claimant to indicate the name of the political organizations she has supported or been a member of, nothing is written.10 [23] I am surprised that there is nothing mentioned in this form when her political activities for the PPD form the very basis of her refugee protection claim. Her explanations that the person who helped her complete the form supposedly did not explain the question clearly11 are surprising, considering that the evidence indicates she was assisted by her lawyer.12 [24] These reasons lead me to conclude that the appellant did not discharge her burden of establishing that she was involved in political activities for the PPD party and that she experienced problems because of them. That is sufficient to conclude that the RPD rendered the correct decision. Internal flight alternative (IFA) [25] The IFA is a determinative issue in any refugee protection claim.13. The RPD also indicated that the appellant had not established that she could not live normally or safely in Port-de-Paix. [26] The appellant did not present any argument against this finding by the RPD. [27] However, after listening to the recording of the hearing, I will make the following comment: While the onus was certainly on the appellant to establish that she cannot live in Port-de-Paix safely or that it would be unreasonable for her to settle there, in this case the member asked only one question and the appellant's counsel did not complete the evidence. The result, in my opinion, is that the issue of an IFA was not sufficiently explored at the hearing. Consequently, the evidence on the record is insufficient to uphold the RPD's finding regarding the IFA. CONCLUSION [28] For these reasons, I confirm the RPD's determination 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. [29] The appeal is dismissed. Maria De Andrade Me Maria De Andrade November 26, 2018 IRB translation Original language: French Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar, Paola et al. v. (Minister of Citizenship and Immigration), 2018 FC 1145. 3 Canada (Minsiter of Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 RPD record, page 101, National Documentation Package on Haiti, June 30, 2016, Tab 7.4. 5 Supra, footnote 1. 6 Josephine Ngoma Khuabi v. (Minsiter of Citizenship and Immigration), 2012 FC 141. 7 CD of hearing 17:02 to 22:03. 8 Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303. 9 CD of hearing 13:58. 10 RPD record, page 22. 11 CD of hearing 17:02. 12 RPD record, page 28. 13 Olivares Vargas v. Canada (Citizenship and Immigration), 2008 FC 1347. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-03766 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB7-02007 7 RAD.25.02 (7 février 2014) Available in English