MB7-05304

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 : MB7-05304 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 December 11, 2018 Date de la décision Panel Me Maria de Andrade Tribunal Counsel for the person who is the subject of the appeal Me Vincent Desbiens 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 her ex-lover. In the Basis of Claim Form (BOC Form), the appellant also alleges the following: * She lived with her ex-lover from 1998 to February 2000. She ended their relationship because he did not want to look after their son born on January 17, 2000; * In October 2003, she contacted her ex-lover to tell him that she could not have lived with a man like him; * In 2010, she began a relationship with the individual whom she would marry on October XXXX, 2012; * The day after her wedding, and almost daily afterwards, she received death threats from her ex-lover, who told her that he has networks everywhere; * In November 2014, her ex-lover allegedly attempted to kill her; * On August XXXX, 2016, the appellant sought refuge at her brother's home in Port-au-Prince because she could not stand living in fear anymore. Upon arriving at her brother's home, her ex-lover, who was near the house, ordered someone to kill her; * On August XXXX, 2016, she filed a complaint with the police and decided to leave Haiti. [2] The Refugee Protection Division (RPD) rejected her refugee protection claim, concluding that: * The appellant had established her allegations about the birth of her son and her wedding on October XXXX, 2012; * The appellant failed to establish, on a balance of probabilities, the existence of a subjective fear; * She failed to establish that she had been in contact with her ex-lover in October 2003 or that he began making threats against her in October 2012; * The appellant also failed to establish her allegations about her ex-lover's actions in November 2014 and August 2016. [3] The appellant submits that the RPD erred in assessing her credibility. She argues several principles developed in the case law to assess credibility, including the principle that sworn testimony is presumed to be credible and that a decision-maker must have serious reasons to doubt it. The appellant submits that the RPD's decision is instead based on the fact that the member considered her account implausible, and that he had no serious reason to doubt her credibility. [4] Having examined the evidence and listened to the recording of the hearing, I find that the appellant failed to establish that the RPD decision is wrong. The decision is not based solely on what the appellant considers to be the implausibility of her account. According to the RPD, the difficulties that she repeatedly experienced in responding clearly and specifically to the member's questions and the inconsistencies indicated by the evidence undermine her credibility. DETERMINATION [5] The Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD determination. SCOPE OF THE APPEAL [6] Except in cases where the credibility of 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, of law or of 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 need to show deference to the RPD because it enjoyed a meaningful advantage, I will indicate such in my analysis. Furthermore, deference towards the RPD never equates to blind endorsement of its findings.2 MERITS OF THE APPEAL [7] In assessing the appeal, I considered Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution.3 [8] Essentially, the appellant argued that the RPD decision is instead based on the implausibility of the alleged facts. In my opinion, this factor was not considered in isolation. [9] At paragraphs 16 and 17 of the decision, the RPD states: [Translation] [16] ... In response to questions asked on these topics as well as on the other elements of her refugee protection claim, the claimant had serious difficulties responding in a clear and specific manner, and repeatedly throughout the hearing, questions had to be repeated several times before obtaining a response on the subject matter. [10] The appellant failed to provide arguments against the panel's remarks regarding her manner of testifying. [11] While listening to the recording of the hearing, I noted the appellant's difficulties in testifying-she had difficulty answering the member's simple question as to whether during the period of their relationship, that is, from 1998 to February 2000, the ex-lover was violent towards the appellant. The panel had to repeat the question several times and remind the appellant to answer the questions as asked.4 [12] This difficulty also arose when the appellant was asked to explain the reasons that pushed her to contact her ex-lover in October 2003 when she had not heard from him since their separation in February 2000.5 [13] I have no reason to find that the RPD erred. The case law has established that when a refugee protection claimant has difficulty giving adequate and direct answers, the panel may make negative credibility findings.6 In this case, the appellant's manner of testifying affected the credibility of her testimony. [14] I examined each of the RPD's findings, and I am of the opinion that the appellant failed to establish that they are erroneous. Without repeating each of the RPD's detailed reasons, I am also surprised that the appellant contacted her ex-lover in October 2003 to remind him that she would never have stayed with a man like him, when she had not heard from him since their separation. Threats since her marriage in October 2012 [15] The appellant submits that since her wedding on October XXXX, 2012, her ex-lover has been threating to kill her almost daily. [16] The RPD found that the appellant's allegations were not credible. Its finding is based on the following elements: * Despite the alleged call she apparently made to her ex-lover in October 2003, the appellant had not been in contact with him for nearly 12 years; * The evidence does not establish that her ex-lover showed any form of aggressiveness towards her during their relationship. The evidence also does not show that he tried to contact her after their separation in February 2010; * Given the extent of the alleged threats, the RPD found it very unlikely that the ex-lover would take so long to attack the appellant when she has been in a relationship with another man since 2010. [17] The appellant argues that the member should not have based the entire decision on implausibilities and that she cannot testify to her ex-lover's reasons for harassing her. [18] Although I agree with the appellant when she states that she cannot testify to her ex-lover's reasons for harassing her, I am of the opinion that she failed to establish, on a balance of probabilities, that her ex-lover is a powerful man with networks everywhere or that he threatened to kill her. [19] As I already stated, the RPD's decision is not based solely on implausibilities. In addition, in Aguebor7 the Federal Court of Appeal states: The panel does not necessarily have to accept testimony simply because it was not contradicted. It may base its decision on reason, common sense and rationality. [20] That is the case here. If, as she alleges, the appellant received death threats almost daily since October 2012, it is surprising that she did not report the situation to the authorities. Receiving death threats is not a trivial matter. Considering the number of death threats the appellant claims to have received, her explanations that she did not take the situation seriously are insufficient to justify her inaction. [21] In addition, the evidence indicates that the appellant did not try to relocate elsewhere,8 while according to her claims, she had been receiving death threats almost daily since October 2012. In Ramirez Perez v. Minister of Citizenship and Immigration 2011 FC 567, the Federal Court finds that it is open to the IRB to consider the refugee protection claimant's conduct in response to the alleged danger. If she seriously feared persecution or her life was in danger, she would have moved or changed jobs at the earliest opportunity. [22] If her ex-lover wanted to kill her, as the appellant alleges he did, it is also surprising that he did not pay her a visit in Cayes. These factors, when considered cumulatively, lead me to seriously doubt her claims that she received death threats from her ex-lover, who was not violent with her during their relationship, who said nothing when she ended their relationship in February 2000 and who did not try to contact her for nearly 12 years. [23] The RPD was right to seriously doubt the alleged attack on her in November 2014. Once again, it is surprising that the appellant did not file a complaint with the police when one of her friends allegedly witnessed the incident. Alleged incident that occurred on August XXXX, 2016 [24] Since the appellant failed to establish that she had been threatened by her ex-lover for several years, the RPD also did not believe that he would have tried to kill her when she claimed to have taken refuge in Port-au-Prince on August XXXX, 2016. [25] Since the appellant's credibility was seriously undermined, the RPD decided not to give probative value to the documents filed to corroborate her claims that this incident occurred. [26] The appellant did not submit specific arguments against these findings. [27] For the following reasons, I am of the opinion that the RPD did not err. The particular facts of this case and those related to this last incident, the occurrence of which cannot be determined in isolation, should be given consideration. [28] The appellant claims to have received death threats on a number of occasions over many years. She never informed the authorities of these facts. She states that she made the decision to leave for Canada after the August XXXX, 2016, incident. However, the evidence indicates that she took steps to obtain a visitor visa in June 2016. [29] Considering these facts, I find it surprising that she contacted the authorities a few days before her departure for Canada. That being said, I am of the opinion that the submission of a complaint does not establish the truthfulness of the facts in the said documents. In this case, the appellant's total lack of credibility with respect to the threats alleged for many years leads me to conclude that the RPD did not err. [30] For these reasons, I find that the appellant failed to meet her burden of establishing that the RPD decision is erroneous. CONCLUSION [31] For these reasons, I confirm the determination of the RPD that XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" within the meaning of section 97 of the IRPA. [32] The appeal is dismissed. Maria De Andrade Me Maria De Andrade December 11, 2018 IRB translation Original language: French Date 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar, Paola and AL v. (Minister of Citizenship and Immigration), 2018 FC 1145. 3 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, Immigration and Refugee Board of Canada, Ottawa, November 13, 1996. 4 CD of hearing 15:00 to 22:29. 5 CD of hearing 23:49 to 28:40. 6 Gjergo v. Canada (Minister of Citizenship and Immigration), 2004 FC 303. 7 Aguebor v. Canada (1993), 160 N.R. 315 (F.C.A.). 8 RPD record, pages 36 and 37, questions 8 and 12 of the IMM-5669 form. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 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 : MB7-05304 6 RAD.25.02 (7 février 2014) Available in English