MB8-05663

Immigration and Refugee Board of Canada Immigration and Refugee Commission de l'immigration et du statut de réfugié du Canada Refugee Appeal Division RAD File No. / No de dossier de la SAR : MB8-05663; MB8-05664; MB8-05665 Private Proceeding/Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXX Appelant(e)(s) Appeal considered at Montréal, Quebec Appel instruit à Date of decision March 14, 2019 Date de la décision Panel Anne Revil Tribunal Counsel for the Appellant(s) Me Darius Constantin Conseil(s) du (de la/des) Appelant(e)(s) Designated Representaive(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION OVERVIEW [1] XXXX XXXX XXXX and XXXX XXXX have the same father. They are both citizens of Haiti. They explained that, on XXXX XXXX, 2013, the male appellant left his sister's home on a motorcycle with a friend to go to the beach. On the way there, three men, two of whom he knew, signalled them to stop. The male appellant managed to flee but his friend was killed. Five or six days later, these individuals showed up at Ms. XXXX's home and struck her to get her to reveal her brother's whereabouts to them. The appellants subsequently took refuge in XXXX XXXX XXXX until they left for the Dominican Republic on XXXX XXXX, 2013. They left that country for the United States on XXXX XXXX, 2013, where they stayed until their arrival in Canada on XXXX XXXX, 2017. [2] Ms. XXXX's son, XXXX XXXX XXXX, was born on US soil on XXXX XXXX, 2017, and is a citizen of that country. [3] Mr. and Ms. XXXX claim to fear threats made against their lives by these three men and their associates. Ms. XXXX is also claiming refugee protection for her son on the grounds that there would be no one to look after him if he had to return to the United States. [4] The Refugee Protection Division (RPD) rejected the claim of Mr. and Ms. XXXX, finding that they were not credible and that they failed to establish a well-founded and current fear or risk if they had to return to Haiti. It also rejected the claim of the minor child on the ground that the fact that no one would be able to look after him in the United States was not sufficient to establish that he would face a serious possibility of persecution or a risk described in subsection 97(1) of the Immigration and Refugee Protection Act (IRPA) if he were to return to that country. [5] The appellants argue that the RPD erred in its assessment of their credibility by relying on minor discrepancies between their testimony and their Basis of Claim Form (BOC Form): * At the hearing, Mr. XXXX testified that he had not stopped during the incident and that he had doubled back, and the fact that he states in the BOC Form to have stopped stems from an interpretation error; * The appellants failed to include their address in XXXX XXXX XXXX in their IMM5669 form because they do not consider themselves as having been residents there, and the female appellant did not mention having gone to the home of the male appellant's mother because she had not stayed there. [6] They also argue that Mr. XXXX provided a reasonable explanation regarding the date that appears on his Dominican visa and that the panel erred in finding, with respect to the issue of their claim for asylum in the United States, that their behaviour was inconsistent with that of someone fearing for their life and that in any event, subjective fear is not a determinative criterion in an analysis under subsection 97(1) of the IRPA. They point out that their claim is essentially based on that subsection. [7] Lastly, they contend that the documentary evidence shows that there is a high likelihood that, despite the lack of recent threats, the criminals would harm them if they were to return to Haiti. [8] They are not presenting evidence on appeal and are not asking that a hearing be held. DETERMINATION [9] The appeal is dismissed. [10] The RPD did err, as alleged by the appellants, in its findings as to their credibility regarding the alleged incidents. However, it correctly determined that the appellants failed to establish, on a balance of probabilities, that they would be subjected to a risk to their lives or a risk of cruel and unusual treatment or punishment if they had to return to Haiti, in the case of Mr. and Ms. XXXX, and to the United States, in the case of XXXX XXXX XXXX. ANALYSIS OF THE APPEAL [11] The Refugee Appeal Division (RAD) conducted its own analysis of the record and all the evidence, read the transcript of the RPD hearing, and applied the standard of correctness.1 I- On Mr. and Ms. XXXX's appeal On the basis of their claim [12] The appellants indicated that they essentially based their claim on the provisions set out in section 97 of the IRPA. [13] Indeed, their allegations have no nexus to the Refugee Convention. Accordingly, their claim will be reviewed solely with regard to the provisions in subsection 97(1) of the IRPA. On the credibility of the incidents that occurred in Haiti [14] The RAD agrees with the appellants that a negative finding should not have been made based on the fact that they failed to mention having stayed in XXXX XXXX XXXX in response to question 12 of their IMM5569 forms. In fact, their explanation that they did not indicate this because they did not feel they had been residents of XXXX XXXX XXXX is reasonable, especially in light of the fact that they did not hide their stay there, having mentioned it in response to question 2a of their BOC Forms. [15] Similarly, the RPD erred when it made a negative finding from the apparent contradiction between the male appellant's BOC Form, in which he states that his sister went to join him at his mother's home, and his sister's testimony, during which she responded in the negative when asked whether she had gone to Mr. XXXX's mother's home. Her explanation that she responded in the negative because they had only met there before their departure and she had not stayed there is credible. [16] In addition, although Mr. XXXX's BOC Form states that he was stopped by the attackers at the same time as his friend, that his friend was killed and that he fled, he testified before the RPD that he had not stopped at the scene but doubled back, which was when he saw that his friend was dead, and a reading of Mr. XXXX's entire account of the incident at the RPD hearing puts the discrepancy into perspective and does not lead to a finding that it undermines the male appellant's credibility. [17] Lastly, the male appellant's explanation that his visa for the Dominican Republic was allegedly backdated by the racketeer who gave it to him is certainly unclear. However, it does not afford a basis for any inference to be drawn as to the male appellant's credibility, even if it was revealed that the visa in Ms. XXXX's passport was also dated XXXX XXXX, 2013, with a Dominican Republic entry stamp dated XXXX XXXX, 2013. [18] Accordingly, their allegations with regard to the incidents they were subjected to before leaving Haiti are credible. On the lack of prospective risk On the lack of threats [19] Mr. and Ms. XXXX submit that if they were to return to Haiti, they would face a risk to their lives at the hands of the three men who killed the male appellant's friend and individuals with whom they are [translation] "affiliated." They note that two of the individuals are free, while the third is in detention for another matter. [20] The attack that Mr. XXXX claims to have witnessed took place on XXXX XXXX, 2013, and his sister was assaulted by the same men who were looking for him five or six days later. They left XXXX, the city where they both lived, immediately after Ms. XXXX's assault, and went to XXXX XXXX XXXX, where they stayed for two months before leaving the country. Although they both explained that they left Haiti via the Dominican Republic because they feared being located in either country, they indicated that they had not received any threats between the time of the most recent incidents, around XXXX XXXX, 2013, and their departure for the United States on XXXX XXXX, 2013. They also did not claim to have been located or to have noticed that they were being pursued. The lack of any new threats over an almost five-year period or even efforts to locate them reduces the likelihood that they would face risks to their lives. On the profile of the attackers [21] In addition, the RPD correctly noted inconsistencies in the portrait of the thugs drawn by the appellants. They described them as dangerous individuals who were likely to track them down in either Haiti or the Dominican Republic and then kill them. But they also indicated that in the five years that have passed since the incidents, these individuals had not sought information as to their whereabouts from Mr. XXXX's family out of an alleged fear of his half-brother, XXXX XXXX XXXX who regularly visits Haiti. It is not consistent that dangerous individuals likely to kill the appellants five years after the fact would be afraid of paying a visit to Mr. XXXX's family home because of regular visits allegedly made there by his brother who was living in the XXXX XXXX, regardless of whether he XXXX XXXX XXXX XXXX XXXX XXXX XXXX. [22] This inconsistency undermines the appellants' credibility as to the threat they would face in the event they were to return to Haiti. On the filing of a claim for asylum in the United States [23] Mr. XXXX made a claim for asylum in the United States nearly four years after arriving there. He explained this delay by the fact that he did not know the steps to take and that despite his precarious status, he did not fear deportation under the Obama administration. He added that when he contacted a charitable organization, he was told that it was too late for him to make a claim. The RPD correctly found that it was not credible that a person claiming to fear for his life if he had to return to his country would wait nearly four years before claiming asylum in the country in which he was living, especially given the fact that, as of 2014, Mr. XXXX was sufficiently proficient in English to attend school and work. It is not credible that someone who feared for his life would be content with a precarious status that would not protect him from being removed to his country. [24] For her part, Ms. XXXX explained that she had not claimed asylum because her husband had taken steps to sponsor her. This explanation is not satisfactory because, as the RPD pointed out, a pending stay document being obtained through sponsorship does not explain why someone who claimed to fear for her life would not make a claim on the basis of another ground to obtain a status. [25] The lack of an asylum claim by Ms. XXXX, and Mr. XXXX's almost four-year delay in filing his claim are elements that undermine their credibility as to the risk they claim to face, as was found by the RPD. [26] In fact, although, as they pointed out, the appellants do not have to establish a subjective fear under subsection 97(1) of the IRPA, they must nonetheless provide evidence that they face a risk to their lives, and a delay in making a claim for refugee protection can be viewed as being inconsistent with the behaviour of someone facing such a risk and undermine their credibility. On the documentary evidence [27] The appellants relied on the documentary evidence2 to assert that they would likely be threatened if they returned to their country. It should first be noted that such evidence relates to acts of revenge and cannot be adapted to victims of every type of assault. According to this documentary evidence, "it is common for gangs or other organized crime structures to commit acts of revenge." However, this sole piece of evidence does not in itself establish, on a balance of probabilities, and in light of the lack of any threats made against the appellants or their family since 2013, that the appellants would face a risk to their lives or a risk of cruel and unusual treatment or punishment if they were to return to Haiti. Conclusion of the analysis [28] It has not been established that Mr. and Ms. XXXX are persons in need of protection under section 97 of the IRPA, as they would not face a prospective risk of harm, on a balance of probabilities, if they were to return to Haiti. The RPD therefore rendered a correct decision in their case. II-Analysis of XXXX XXXX XXXX's appeal [29] The child is a US citizen and his mother is claiming refugee protection on his behalf on the ground that no one would be able to take care of him should he return to the United States. [30] The appellants provided no comments as to the RPD's decision in this claim. [31] Sections 96 and 97 of the IRPA provide a limited list of grounds enabling someone to claim the status of refugee or person in need of protection. In this case, nowhere has it been shown that there is a serious possibility that XXXX XXXX XXXX would be persecuted if he had to return to live in his country of origin, or that he would face a risk defined in section 97 of the IRPA. [32] The RPD therefore rendered a correct decision. CONCLUSION [33] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD that XXXX XXXX XXXX, XXXX XXXX and XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection under sections 96 and 97 of the IRPA. Anne Revil Anne Revil March 14, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration). November 14, 2018; 2018 FC 1145. 2 National Documentation Package, Haiti, October 20, 2017, Tab 7.3, 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. Immigration and Refugee Board of Canada. June 18, 2015. HTI105162.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB8-05663; MB8-05664; MB8-05665 9