MB8-25016

RAD File No. / No de dossier de la SAR : MB8-25016 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, QC Appel instruit / entendu à Date of decision July 29, 2019 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Me Aristide Koudiatou Mianata Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre Reviewed by I. Bourgeau, July 5, 2019 REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated October 1, 2018, rejecting his claim for refugee protection under section 97 of the Immigration and Refugee Protection Act (IRPA). OVERVIEW [2] The appellant alleges in his Basis of Claim Form1 (BOC Form) that he was the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Carrefour, Port-au-Prince, Haiti. He alleges that, in late XXXX 2017, he began receiving anonymous calls, but that the person at the other end of the line hung up as soon as the appellant answered the telephone. [3] He alleges that, on XXXX XXXX, 2017, he was subjected to extortion by three criminals claiming to be local bosses, but that he refused to pay the money demanded. A few days later, he received an anonymous call making it clear to him that, to operate his business in the area, he had to pay up because the criminals ensured the security of the premises. [4] He alleges that, on XXXX XXXX, 2017, five criminals visited him at his business and they left with money and his cellphone. They also pointed a gun at the appellant and his employees, and one of them struck the appellant in his left eye. [5] The appellant complained to the police and the justice of the peace, on XXXX XXXX, 2017. As the criminals had his cellphone, he called them to tell them that he was going to cut off the telephone service if they did not return the cellphone. The criminals allegedly responded by uttering death threats against him. [6] The criminals then allegedly contacted him on his new cellphone, and also called his uncle on XXXX XXXX, 2017. In both cases, they allegedly left messages threatening his life. [7] The appellant allegedly left his house with his family to seek shelter at the home of his uncle's friend. [8] He alleges that the criminals went to his home on the night of XXXX XXXX, 2017, and that they tried to set fire to it, but were unsuccessful. [9] The appellant left Haiti after these incidents and arrived in the United States on XXXX XXXX, 2017. He came to Canada on July 21, 2017, to claim refugee protection. [10] In his amended BOC Form,2 the appellant alleges that, in XXXX 2017, there was an attempt to kidnap his daughter at school. [11] The RPD found that the appellant was not credible on the basis of his refugee protection claim because of many inconsistencies and implausibilities in his evidence. The appellant alleges that the RPD failed to adhere to the principles of natural justice and fairness, and incorrectly assessed his credibility. [12] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal and set aside the determination, or refer the matter to the RPD for re-determination. DETERMINATION [13] After conducting an independent analysis of all the evidence on the record, including the recording of the hearing, I conclude that the RPD erred on the issue of credibility. I am of the opinion that the determinative issue in this case is the internal flight alternative for the appellant in Haiti. [14] However, I cannot confirm or set aside the determination of the RPD without holding a new hearing on this issue, which the IRPA precludes me from doing. Consequently, I must refer the matter to the RPD for re-determination. ROLE OF THE REFUGEE APPEAL DIVISION [15] The RAD must review the RPD decision and conduct its own analysis on the basis of all the evidence on the record in order to determine whether, in light of all the arguments advanced by the appellant, the RPD erred. The standard of review for findings of fact, of law or of mixed fact and law is correctness. In certain exceptional cases where the RPD enjoys a meaningful advantage, the RAD will show deference.3 This is therefore a case-by-case analysis.4 [16] In my view, the applicable standard of review in this case is the correctness standard.5 ANALYSIS Credibility [17] The appellant criticizes the RPD for making negative credibility findings that are not supported by the evidence and for conducting a microscopic analysis of the evidence. [18] I agree with the appellant that the RPD placed too much importance on certain inconsistencies in his case, which, in my view, were explained satisfactorily by the appellant or are not significant enough to make an overall finding of non-credibility. Circumstances related to the incident of XXXX XXXX, 2017 [19] For instance, the RPD criticized the appellant for not stating in his IMM-5669 form that he was the XXXX XXXX XXXX XXXX.6 However, the appellant explained that he stated that he was the XXXX because, according to the form, a person has to indicate the occupation or job they hold,7 and in his written account he clearly states that he was the XXXX XXXX XXXX.8 [20] The RPD criticized the appellant for stating in his BOC Form and in his testimony that he was the only one struck during the attack of XXXX XXXX, 2017.9 However, the appellant stated at the hearing that his employees had also been struck, and this is also reflected in the findings of the peace court10 and is not contradicted by his BOC Form.11 [21] I also find that the appellant reasonably explained that, although his XXXX XXXX XXXX states that he XXXX XXXX XXXX in 2012, he did not XXXX XXXX until 2013. He also explained that he was unable to obtain his new XXXX XXXX indicating the new address because it was still at his business, and he could not go back there before leaving because of attacks and threats by the criminals. [22] The RPD also made negative credibility findings because the medical certificate had a spelling error in the heading and did not indicate the date of the incident in question,12 and because the photographs submitted as evidence of his injury did not come from a police force or hospital.13 Although I did not give weight to this corroborating evidence, this is not sufficient, in my opinion, to undermine the appellant's overall credibility regarding the incident of XXXX XXXX, 2014. Circumstances related to the incidents of XXXX XXXX and XXXX, 2017 The RPD concluded that the appellant's behaviour was inconsistent with the alleged fear based on the fact that the appellant called the criminals to ask them to deactivate his stolen telephone and to bring it back to him, when these criminals had uttered threats against him.14 The RPD can make findings of implausibility only in the most obvious cases. The appellant explains in his BOC Form, as well as in his testimony, that his telephone directory was very important to him as a XXXX XXXX XXXX XXXX. The appellant took the risk, perhaps naively, of calling the criminals to get his telephone back. The appellant explained that, following the call, the threats intensified and he therefore decided to flee and hide. Considering the appellant's situation, the panel must ask itself "if the facts as presented are outside the realm of what could reasonably be expected."15 I do not find the appellant's explanations so unreasonable as to conclude that they are implausible. Appellant's stay in the United States The RPD questioned the appellant's credibility because he did not apply for asylum in the United States.16 I note that the appellant remained in the United States for less than three months. He explained that he had left Haiti with the intention of coming to Canada to live with his brothers and because he had been advised that he had a better chance of obtaining refugee protection here. The Federal Court has ruled that reunification with family is a valid reason for failing to claim refugee protection at the first opportunity.17 In the circumstances, I cannot draw a negative inference with respect to the appellant's failure to apply for asylum in the United States. For the reasons stated above, I set aside the findings of non-credibility made by the RPD. In my view, the RPD placed too much importance on certain inconsistencies in the appellant's record, which, in my opinion, were explained satisfactorily by the appellant or are not significant enough to make an overall finding of non-credibility. Circumstances concerning the attempted kidnapping of the appellant's daughter in XXXX 2017 The RPD did not believe the appellant's allegations that an attempt was made to kidnap his daughter in XXXX 2017. Even if I accepted the RPD's conclusion, I find that this is not fatal to the rest of the appellant's testimony so as to find that the appellant lacks credibility with respect to the incidents of XXXX XXXX, XXXX and XXXX, 2017. Internal flight alternative in Haiti [23] Notwithstanding my finding concerning the appellant's credibility, I am of the opinion that the determinative issue in this case is the existence of an internal flight alternative, should the appellant return to Haiti. [24] Given that this issue was not addressed at the hearing, I cannot rule on this aspect. I conclude that the matter must be referred to the RPD so this issue can be addressed before the appellant's refugee protection claim can be allowed or rejected. CONCLUSION [25] Pursuant to paragraph 111(1)(c) of the IRPA, I refer the matter to the RPD for a new hearing and re-determination by a different member. [26] The appeal is allowed. (signed) Bianca Eleonora Suciu Me Bianca Eleonora Suciu July 29, 2019 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pp. 22-25 of the Refugee Protection Division (RPD) record. 2 RPD record, p. 24. 3 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 70-73. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 74. 5 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, paras. 90, 91. 6 RPD decision, para. 16. 7 RPD record, p. 96, question 8, p. 97. 8 BOC Form, RPD record, p. 22, para. 3. 9 RPD decision, para. 21. 10 RPD record, p. 140. 11 RPD record, pp. 22-23. 12 RPD decision, para. 21. 13 RPD decision, para. 22. 14 RPD decision, paras. 27-29. 15 Valtchev, Rousko v. M.C.I. (F.C.T.D., No. IMM-4497-99), Muldoon, July 6, 2001; 2001 FCT 776, para. 16 RPD decision, paras. 35, 36. 17 Alekozai, Rafi v. M.C.I. (F.C., No. IMM-8260-13), Rennie, February 6, 2015; 2015 FC 158. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-25016 RAD.25.02 (April 4, 2019) Disponible en français 6 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 (April 4, 2019) Disponible en français