MB8-08162

RAD File No. / Nº de dossier de la SAR : MB8-08162 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, Quebec Appel instruit / entendu à Date of decision July 3, 2019 Date de la décision Panel Me Damien Côté Tribunal Counsel for the person who is the subject of the appeal Me Darius Constantin 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] XXXX XXXX XXXX (the appellant), a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rendered on January 24, 2018. The RAD dismisses the appeal and confirms the determination, namely, that the appellant is not a Convention refugee or a person in need of protection within the meaning of paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). I confirm the determination for the following reasons. [2] The appellant's father is the owner of a XXXX in Haiti. This XXXX helps the family support themselves. The appellant alleges that on XXXX XXXX, 2013, he discovered graffiti on the XXXX front door and he received death threats. Given that he is the eldest son, the appellant argues that the threats were directed at him personally. The appellant alleges that these actions were brought to the attention of the police, as well as the justice of the peace; but despite these efforts, the threats continued. To flee from the danger, the appellant's family moved to XXXX XXXX XXXX XXXX XXXX. The appellant, however, continued to feel threatened and left for Brazil on XXXX XXXX, 2013. The appellant worked in Brazil for almost three years. On XXXX XXXX, 2016, he arrived in the United States, and on XXXX XXXX, 2017, he arrived in Canada, where he made a refugee protection claim. [3] The determinative issue for the RPD is whether the appellant is a "person in need of protection" as defined in subsection 97(1) of the IRPA and whether he should be excluded pursuant to Article 1E of the Convention because of his status in Brazil. The RPD found that the appellant did not establish a serious possibility of persecution on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to Haiti. The RPD also found that there was no evidence of permanent status in Brazil and therefore found that Article 1E does not apply in this case. [4] The appellant argues that the RPD erred1 in its assessment of his credibility by setting aside his version of the events and finding that the appellant did not demonstrate, on a balance of probabilities, that he would be personally subjected to a danger of torture, to a risk to his life, or to a risk of cruel and unusual treatment or punishment if he were to return to Haiti. ROLE OF THE REFUGEE APPEAL DIVISION [5] In Huruglica, the Federal Court of Appeal declares that: "[t]he RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or on the facts."2 [6] I conducted an independent assessment of all the evidence on the record, which included a full review of the testimony given at the hearing, for the purpose of forming my own opinion regarding this refugee protection claim and determining whether the decision rendered by the RPD is correct. ANALYSIS a. Credibility Parties and the REFUGEE PROTECTION DIVISION [7] The RPD's decision was unfavourable toward the appellant partially due to the issues with the credibility, which the RPD explains in its decision. It also notes the contradictions that were found between the documentary evidence, specifically Exhibit P-1,3 and the appellant's testimony in regard to the ownership of the property. The appellant recognizes that the P-1 document contains errors; however, he argues that the RPD was too microscopic in its analysis of it. Furthermore, the appellant argues that the person who prepared the P-1 document was the source of all the errors contained in the document.4 He adds that it is possible that there may have been some confusion on this matter due to the fact that, although the threats were directed toward the appellant, the property belonged to his father.5 The appellant also adds that in statements issued by justices of the peace in Haiti, certain standardized sentences appear regularly, which explains why there may be certain inconsistencies.6 Analysis [8] I agree with the appellant that the RPD was too microscopic in its analysis of the documentary evidence on the record. I find that the appellant's testimony in regard to documentary evidence P-1 is credible on a balance of probabilities. [9] First, during his testimony, the appellant recognized the errors made in the P-1 document and, on multiple occasions, he offered the same explanation as to the possible reason why. Consequently, where there may be one or more errors, the appellant provided a plausible explanation to clarify these errors. By reason of this, I am of the opinion that, the P-1 document appears to be consistent with the appellant's account. The following are a few excerpts that identify both the alleged target of the threats (e.g. the appellant) and the owner of the property (e.g. his father) (emphasis added): [translation] - (...) to note the acts of vandalism perpetrated against his home and the condition of land belonging to his father XXXX XXXX, for which he was the victim of threats by armed individuals (...)7 - (...) saw and made note of the slogans written toward the applicant on the wall of the home, which read as follows: XXXX XXXX if we would have found you, we would have killed you for the land (translation) (...)8 - (...) the applicant drove us a distance from his home, still in XXXX, on his father's property (...) on a portion of land that is of average size belonging to his father XXXX XXXX (...)9 - (...) and that XXXX XXXX son of the owner always chased them off of the property, preventing them from carrying out their crime10 - (...) this portion of the land, which the panel just made note of, belongs to my father XXXX XXXX (...)11 [10] Nevertheless, I find that there are in fact inconsistencies in the P-1 document, as noted in the RPD decision. The following is one example, among others: (emphasis added) [translation] - At the verbal request of Mister XXXX XXXX, owner, residing and domiciled in XXXX (...)12 [11] I am of the opinion that the reasons offered by the appellant provide sufficient explanation for the cause of these inconsistencies. For example, in the case of the excerpt above, the fact that standardized phrases appear regularly in the statements issued by the justices of the peace in Haiti,13 as the appellant suggests, explains this specific inconsistency. [12] I find that the appellant's testimony and Exhibit P-1, are both credible pieces of evidence on the record. Therefore, I am of the opinion that the RPD erred with regard to the credibility of the evidence. b. The internal flight alternative in Haiti Parties and the Refugee Protection Division [13] In regard to the fear of persecution in Haiti, the RPD observed that the appellant stayed in Haiti for ten months (from XXXX 2013 to XXXX 2013) following the alleged events that took place concerning his family's property.14 The RPD found that both of the appellant's parents, as well as his brother and sister sought refuge in XXXX XXXX XXXX XXXX XXXX,15 namely, 20 minutes from the property in question; that the children attend school; and that the parents regularly go out to run their errands. In accordance with the evidence on the record, it is only during visits to the properties in question that the alleged threats reoccur. [14] The appellant also argues that the RPD erred in finding that he is no longer at risk in Haiti because some time had passed, noting that the retribution of bandits in Haiti can last a long time.16 [15] The appellant explains that the type of threats in question are not related to the Convention17 and that the analysis must be made pursuant to subsection 97(1) of the IRPA. [16] The RPD finds that the appellant has an internal flight alternative (IFA) in Haiti, either in Cap-Haïtien, Les Cayes, and Port-au-Prince. According to the appellant, the IFA is limited due to the fact that he is not able to support himself all over Haiti since the unemployment rate is at approximately 60%.18 The appellant explains that [translation] "it is almost impossible (...) to find another job or to restart in another city."19 Analysis [17] I agree that the nature of the allegations made by the appellant are such that there is no nexus to the Convention and that the analysis of the record must be done pursuant to subsection 97(1) of the IRPA. [18] With regard to the IFA, I am of the same opinion as the RPD. [19] The IFA is evaluated with a two-pronged test. First, it is a matter of verifying that there is no serious possibility, on a balance of probabilities, that the appellant would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to Haiti, in the area of the country where there is an IFA.20 Second, it is a matter of verifying that the IFA is reasonable, given all of the circumstances of this part of the country where that appellant would re-establish himself.21 [20] To begin, I will focus on the first part of the test. Following the threats, the appellant affirms that he stayed at the same location for [translation] "a few weeks,"22 and for the next ten months, he stayed in XXXX XXXX XXXX XXXX XXXX, which is a 20-minute drive from his father's property. His family members still live in XXXX XXXX XXXX XXXX XXXX and regularly leave their homes to run errands or go to school. Following that family's move, the threats were brought on only after a visit to his father's property. [21] Taking into consideration the information found in the National Documentation Package23 (NDP) for Haiti, I am conscious of the risk of retribution that exists within the country-as stated by the appellant. I am also aware that the retribution of bandits in Haiti may last a long time. However, I find that the risk described by the appellant seems to be closely connected to the location of his family's property. As a matter of fact, the appellant's account demonstrates that the family not only remained on the property for two weeks following the alleged incident, but that it then relocated to an area that is only 20 minutes away by car. [22] Furthermore, the NDP also states that Haitian customs make it easy to spread rumours as to the whereabouts of individuals. Given the time that has passed since the incident occurred, the area of the family's relocation in relation to the property in question, and the activities carried out by the family since the alleged incident, I find that there is not sufficient evidence to demonstrate that the bandits are actively searching for retribution. [23] I agree that, based on a balance of probabilities, the appellant's life is no longer at risk and he is not at risk of being subjected to cruel and unusual treatment or punishment if he were to return to XXXX XXXX XXXX XXXX XXXX, where his family is. If he were to take refuge elsewhere in the country, the risk would lower even more. [24] Continuing on to the second part of the analysis, the appellant argues that, due to the high unemployment rate in Haiti, it would be difficult for him to find employment and support himself there. However, the evidence suggests that the appellant has the ability to work, as he worked during his recent stay in Brazil. [25] In response to the appellant's argument, I note the high unemployment rate in Haiti is certainly a factor to be considered in the analysis of the IFA; however, in itself, it is not sufficient to conclude that the appellant should receive refugee status. It is also important to recognize that the unemployment rate to which the appellant made note of in his evidence represents a characteristic of the entire country, not a specific region within the country where he could relocate. The appellant's desire to [translation] "find another job or restart in another city"24 is a good objective, but a high unemployment rate across the country is not sufficient to conclude that the IFA is unreasonable. The case law ...set[s] up a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions.25 [26] I am of the opinion that the threshold is far from being reached by the appellant in this case. Not only are the conditions in Haiti not of the sort that the appellant's life and safety throughout the country are in danger, but the appellant provides very little evidence suggesting this in the record. The evidence demonstrates that the appellant still has several family members in Haiti and that he has the possibility to move to another location within the country. His ability to earn a living in Haiti is not limited, although the country's economic performance is not the best. In short, "[i]t is not a matter of a claimant's convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location, before travelling halfway around the world to seek a safe haven, in another country."26 I am of the opinion that the appellant has everything necessary to support himself. [27] Therefore, in the context of my analysis pursuant to subparagraph 97(1)(b)(ii) of the IRPA, I agree with the RPD that there is an IFA for the appellant in Haiti. CONCLUSION [28] The RAD dismisses the appeal and confirms the determination, namely, that XXXX XXXX XXXXXXXX is not a Convention refugee or a person in need of protection pursuant to paragraph 111(1)(a) of the IRPA. (signed) Damien Côté Me Damien Côté July 3, 2019 Date IRB translation Original language: French 1 Appellant's memorandum, paragraphs 12 to 13. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), paragraph 98. 3 Excerpt of the minutes from the XXXXXX XXXXXX Tribunal registry. 4 Appellant's memorandum, paragraphs 38 to 42. 5 Appellant's testimony, at approximately 01:11:56. 6 Appellant's testimony, at approximately 01:12:56. 7 Refugee Protection Division (RPD) record, page 108. 8 RPD record, page 108. 9 RPD record, page 108. 10 RPD record, page 108. 11 RPD record, page 108. 12 RPD record, page 108. 13 Appellant's testimony, at approximately 01:12:56. 14 Appellant's record, page 8. 15 Appellant's record, page 8. 16 Appellant's memorandum, paragraphs 43 to 45. 17 Appellant's memorandum, paragraph 20. 18 Appellant's memorandum, paragraphs 43 to 45. 19 Appellant's memorandum, paragraph 50. 20 Adjei v. Canada (Minister of Employment and Immigration), 1989 CanLII 5184 (FCA). 21 Ramachanthran v. Canada (Minister of Citizenship and Immigration), 2003 FCT 673 (CanLII) 22 Appellant's memorandum, paragraph 6. 23 Revenge committed by gangs or by other organized crime structures; capacity of gangs or other organized crime structures to trace their targets, including if the targets return to Haiti after a long absence, Response to Information Request (HTI105162.E), Tab 7.3, National Documentation Package on Haiti, June 18, 2015. 24 Appellant's memorandum, paragraph 50. 25 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2001, 2 F.C. 164, paragraph 15. 26 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1994, 1 FC 589, 1993 CanLII 3011 (FCA). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / Nº de dossier de la SAR : MB8-08162 RAD.25.02 (April 4, 2019) Disponible en français 2 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