MB8-22150

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. / N° de dossier de la SAR : MB8-22150 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 September 4, 2019 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Jean-Marie Hercules Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION OVERVIEW [1] The appellant, XXXX XXXX XXXX, a citizen of Haiti, is appealing from a decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim because he failed to credibly establish his claims that his life is in danger in Haiti. [2] The appellant alleges that the RPD erred in the assessment of his credibility. He also states that new evidence will be submitted on appeal and leaves it up to the Refugee Appeal Division (RAD) to decide whether to hold a hearing. He asks the RAD to allow the appeal, to substitute its own determination or to refer his record to the RPD for consideration by a differently constituted panel. [3] Despite what is written in the memorandum, the appellant did not attach a new document as new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). Consequently, the RAD cannot hold an oral hearing. [4] After assessing the evidence and listening to the hearing recording, the RAD confirms the RPD's decision. [5] The appeal is dismissed. FACTUAL BACKGROUND [6] The appellant fears abduction or murder in Haiti because his father is a XXXX XXXX XXXX at the court of XXXX XXXX XXXX XXXX XXXX. He claims that criminals his father prosecuted could seek revenge and cause problems for him. More specifically, he alleges in his Basis of Claim Form that on the night of XXXX XXXX to XXXX XXXX, 2016, criminals broke into the family home intending to kill him or his father. He believes that this was an act of vengeance. [7] Fearing for his safety, he left Haiti on XXXX XXXX, 2017. Impugned decision [8] The decision rejecting the refugee protection claim is based on the following factors, among others: * The appellant gave vague testimony about the break-in at the family home. In addition, he did not establish that this incident is at all related to his father's work. * The appellant's statements relating to the break in being an act of vengeance are speculative. According to the RPD, this assumption is based on anecdotal evidence about similar incidents as well as a press clipping (Exhibit P-7). * The appellant testified that after this incident, neither he nor his family have had any problems. His father continues to live in his home, and he continues to go about his professional activities. The appellant's mother comes and goes between the United States and Haiti. * The fact that the appellant waited to leave Haiti is not consistent with the behaviour of someone who fears for his or her safety. Arguments submitted on appeal [9] The appellant points out that testimony under oath is presumed to be credible and that the RPD must have serious reasons to doubt his allegations. According to the appellant, the RPD was overzealous, conducting a microscopic examination of his testimony and drawing perverse and capricious conclusions. [10] He submits that the RPD erred in drawing a negative inference from the fact that his family did not go to the authorities for protection. He also claims that the RPD did not consider the Canadian government's recommendations about the prevailing lack of safety in Haiti. [11] He argues that criminals are active in Haiti and could easily locate him anywhere in the country. ROLE OF THE REFUGEE APPEAL DIVISION [12] Except where the credibility of oral testimony is at stake and the RPD has a particular advantage, the RAD must determine whether the RPD's decision is correct.1 If I defer to the RPD because it has a particular advantage, I will indicate that in my analysis. ANALYSIS Credibility [13] Several factors led the RPD to find that the appellant is not credible in his statement that his life is in danger because of his father's job as a XXXX XXXX XXXX at the court of XXXX XXXX XXXX XXXX XXXX, which he has had for more than 20 years. [14] Essentially, the appellant submits that the RPD erred in its findings because they are perverse or capricious, and because it failed to consider the situation in Haiti. [15] First, the facts as alleged do not engage section 96 of the IRPA. Even though his father's appointment to this position may be the result of a political appointment, the evidence does not lead to a conclusion that the break-in at his family home is related to one of the five Convention grounds. [16] Under section 97 of the IRPA, the appellant must establish that the risk to which he would be exposed, if he is to return, is different from the generalized risk all Haitians experience due to the prevailing lack of safety in Haiti. [17] After assessing the evidence and listening to the hearing recording, I am of the opinion that the RPD made the appropriate decision, although my analysis of some of the factors considered by the RPD may be different. For example, I would not criticize the appellant for not remembering the name of the professor that taught the cultural anthropology course. [18] The RPD did not doubt that the appellant's father is a XXXX XXXX XXXX at the court of XXXX XXXX XXXX XXXX XXXX XXXX since several documents submitted in the visa application confirm his father's employment. [19] Despite drawing certain negative inferences from the manner in which the appellant testified about the break-in, the RPD did not doubt that the incident took place. However, it decided that the appellant failed to establish conclusively that the criminals who tried to break into his house acted out of vengeance. I agree with this last finding. [20] The belief that the criminals were among those that his father had prosecuted is, on the evidence, mere speculation. Here is what I base this finding on. [21] The appellant's father has had a sensitive job for about 20 years. Apart from this incident, the appellant testified that his father has not had any problems. After the incident, the family continued to live at the same address and to go about their usual business. Neither his father nor the other family members have had other problems. His father remains in Haiti and is hoping to be appointed to the appeal court. His mother continues to come and go between the United States and Haiti. [22] The appellant also continued on with his business. He states that after the incident, he left for his aunt's home in XXXX. During the week, he volunteered for the XXXX XXXX XXXX, hoping to be offered a contract. On the weekend, he returned to Port-au-Prince to continue his courses at university. He did not have any particular problems either. These circumstances, combined with his delay in leaving Haiti, lead to a conclusion that he did not face the risk alleged, even if I agree with the appellant that the incident in late XXXX 2016 could have given rise to fear in an individual. However, the fear of being abducted or even killed is the plight of Haitians, who face a lack of safety on a daily basis. [23] Given these factors, it is not an error, in the context of Haiti, to conclude that this was an isolated incident. [24] For these reasons, I conclude that the appellant failed to establish that the incident in XXXX 2016 is related to his father's job. He failed to establish that it is more likely than not that he would be subjected to a risk different than the generalized risk to which other Haitians are subjected due to the lack of safety that prevails in the country. CONCLUSION [25] For these reasons, I confirm the RPD 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. [26] The appeal is dismissed. Maria De Andrade Me Maria De Andrade September 4, 2019 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-03766 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB8-22150 5 RAD.25.02 (7 février 2014) Available in English