MB8-06205

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 : MB8-06205 MB8-06206 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 24, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Gisela G. Barraza Conseil(s) (de la/des) personne(s) 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 appellants, XXXX XXXX and his wife XXXX XXXX XXXX XXXX, are citizens of Haiti. Ms. XXXX was threatened with assault for having refused numerous advances on the part of criminals who desired her. The latter carried out their threat four days after her wedding by forcibly entering the marital home, sexually assaulting her and beating her husband. [2] Threatened with reprisals for having gone to the police, they fled to Brazil in August 2014 and stayed there for two years. The climate allegedly led them to leave for the United States before coming to Canada in July 2017. [3] The Refugee Protection Division (RPD) rejected the claim, finding that the claimants were not credible. It also found that, upon a return to Haiti, Ms. XXXX would not face any prospective risk as a woman and that the couple would not face any prospective risk as members of the diaspora. They are appealing against the RPD's decision dated February 21, 2018. [4] The appeal alleges that the RPD's finding concerning the appellants' credibility and the implausibility of their explanations is perverse, capricious and contrary to jurisprudential principles. DETERMINATION OF THE APPEAL [5] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD that the appellants are neither Convention refugees nor persons in need of protection. THE REFUGEE APPEAL DIVISION'S ROLE [6] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record.1 The exception to that rule is where the RPD enjoys a meaningful advantage in assessing the credibility of or the weight to be given to the oral evidence it hears, in which case the RAD may owe it deference.2 [7] I will apply the correctness standard of review as I conduct an independent analysis of the record, which includes examining all the evidence and listening to the recording. ANALYSIS [8] The determinative issue is credibility. [9] The RPD based its finding that the appellants lacked credibility on four elements, as follows: - The inability to identify the individuals had kept them from filing a complaint with the police for the threats received in May 2014, but did not prevent them from doing so after the assault in June 2014; - There was a contradiction as to the number of telephone calls received after the assault, ranging from a single call to several; - They allegedly received a call informing them that the criminals knew that they had gone to the police, despite the fact that the appellants could not identify them; - There was an inconsistency with respect to the number of aggressors, either three or five, depending on whether one relies on the witnesses, the Basis of Claim Form (BOC Form), the amended BOC Form or the excerpt from the registry transcript of the peace tribunal in Jacmel. a) Aggressors' identities [10] Ms. XXXX explained that her complaint concerning the threats on May 1, 2014, was rejected because she was unable to identify the criminals. Yet, the complaint regarding the incident in June 2014 was allegedly accepted, despite the fact she still could not identify them. [11] The RPD found that the contradictory explanation undermined Ms. XXXX credibility. [12] The lawyer argued that testimony must be considered as a whole and take into account the subjective fear of persecution without conducting a microscopic analysis of what was stated. [13] The appellants claim that they do not know the identities of their aggressors. However, they recognized their faces and their voices from having had dealings with them since at least March 2014. After pointing out the criminals to friends, they also learned that they were part of a local gang called "XXXX XXXX XXXX." The appellants' friends and family also know the criminals from having had to relay messages and make threats on their behalf. [14] Although they do not know the names of the criminals, the appellants were able to provide sufficient information in order to identify them. Thus, their justification for not having filed a complaint because they could not identify them is not a microscopic element, as it is central to the credibility of the fear. [15] The RPD's finding concerning Ms. XXXX credibility based on her explanation for the filing of complaints is correct. b) Number of telephone calls received after the assault [16] The telephone threats received from the assailants after the assault were allegedly in response to the complaint that the couple filed with the police. Ms. XXXX alleges that the couple received one call, whereas her husband claims that he received several. Several calls are mentioned in the amended account. [17] The RPD found that Ms. XXXX wavering testimony and the fact that Mr. XXXX did not provide clarification in a timely manner undermined their credibility. [18] Considering the significance of that incident in their lives, it is unreasonable to think that the couple would not have discussed the threatening telephone calls received. How then to explain the lack of consistency between the two testimonies? It is surprising that Ms. XXXX was unable to specify when the threatening call was received, when Mr. XXXX stated that there had been several. The repeated threats are what allegedly prompted the couple to flee. At the very least, Ms. XXXX should have been aware of the numerous calls even if she had not witnessed them. [19] The RPD's finding regarding the appellants' credibility based on those facts is correct. [20] The telephone threats were allegedly related to the complaint filed with the police. According to Mr. XXXX, the police had reportedly been ineffective in the past and would be in the future. If filing a complaint would at best be a waste of time, according to Mr. XXXX testimony, the criminals' motive for resorting to threats is questionable. [21] Ultimately, the criminals allegedly found out that a complaint had been filed against unknown individuals. The appellants were unable to explain how the criminals, who were unknown to the appellants, could have learned that they were the individuals concerned. c) Inconsistency in the number of aggressors [22] The number of aggressors is sometimes three, sometimes five, depending on whether one relies on the witnesses, the BOC Form, the amended BOC Form or the excerpt from the registry transcript of the peace tribunal in Jacmel. [23] The appellants tried to explain the difference between the documents, alleging that three individuals entered, while two stayed outside. However, in her legal statement, Ms. XXXX specifies that they entered, but does not specify that there was a different number inside and outside. Paragraph 11 of the account refers to having been a victim of a group of three criminals in total. No distinction is made as to a varying number at any given time. The number of criminals remains consistent in the amended account, despite the fact that details were added about the sequence of events. The appellants could not reasonably explain the discrepancies or the lack of details in the amended BOC Form. [24] Therefore, the RPD's finding regarding the appellants' credibility on that element is correct. [25] The elements considered by the RPD as a whole had numerous contradictions, which undermined the appellants' credibility. [26] Although no complaint was filed because the aggressors' identities were unknown, one was subsequently filed despite the continued anonymity. Notwithstanding the anonymity, the appellants were able to identify the criminals to friends to find out more about them. The threats received through people close to them also increase the potential for identification. The number of threatening telephone calls received is contradictory. They cannot explain how anonymous criminals could have learned that a complaint had been filed, and even less, how they could have felt that it was against them personally. The number of aggressors varies in the documents submitted. The testimony was adjusted to reflect the written statements. Despite the opportunity given to do so, no clarifications were made in a timely manner to address these deficiencies and contradictions. [27] These elements form part of a greater whole that is used to assess the appellants' credibility. Although each individual element can be considered to be of minute importance, they take on a whole other importance when considered together. I find that the RPD's finding regarding the appellants' credibility is correct. [28] The RPD also assessed Ms. XXXX prospective risk as a woman by taking into consideration Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Considering that she is married and surrounded by family, she is not alone or without the physical resources that would make her vulnerable. [29] The appellants made no argument against the RPD's finding that there is no serious possibility that she would be persecuted by reason of her membership in the particular social group of women. I agree with the RPD's finding, which is correct. [30] Lastly, the RPD also analyzed the appellants' prospective risk as members of the diaspora who are perceived as being wealthy. Besides having been out of the country since 2014, the appellants did not allege a specific profile. Their risks in no way differ from those of the rest of the Haitian population. [31] The appellants raised no arguments against the RPD's finding that they would not be subjected to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment. I agree with the RPD's finding, which is correct. CONCLUSION [32] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. Richard Sheitoyan Me Richard Sheitoyan January 24, 2019 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-06205 MB8-06206 RAD.25.02 (September 18, 2018) Disponible en français 7 RAD.25.02 (September 18, 2018) Disponible en français