MB9-23860

RAD File No. / No de dossier de la SAR : MB9-23860 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 31, 2020 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Me Gisela G Barraza 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] I dismiss the appeal. XXXX XXXX XXXX (the appellant) is a citizen of Haiti. She is appealing against the decision of the Refugee Protection Division (RPD) to reject her refugee protection claim. [2] The appellant alleges that she fears her maternal aunt who wanted to forcibly take a plot of land that belonged to her mother. [3] The appellant maintains that the RPD erred in its conclusion that she did not face any risk in that regard. She maintains that she fears kidnapping, which was not considered by the RPD in its analysis of the prospective risk. The RPD, however, detected significant contradictions and omissions and concluded that the appellant would not be subjected to a risk or threat in Haiti. The RPD did not exclude the appellant under article 1E of the Convention. [4] The determinative issue is whether the RPD erred in its assessment of the appellant's credibility. [5] I note that the Minister did not intervene on appeal. [6] I conclude that the appellant is not credible and that the RPD's decision is correct. DETERMINATION [7] I dismiss the appeal. The RPD did not err in determining that the appellant is neither a Convention refugee nor a person in need of protection. FACTUAL BACKGROUND [8] In her Basis of Claim Form (BOC Form), the appellant states that in July 2014 she was involved in a family land dispute involving her mother and her maternal aunt. She states that she defended her mother's refusal to give up her land to her sister, who claimed it without any right. She states that she was kidnapped by criminals the day after the dispute and released once her mother had paid a ransom later the same evening. She was once again pressured by her aunt to convince her mother to change her mind, and she moved to XXXX in August 2014, where she hid at her paternal aunt's house. She states that she was found in XXXX. On XXXX XXXX, 2014, she left Haiti for Brazil. On XXXX XXXX, 2016, she left Brazil for the United States and, fearing that she would be deported by the United States administration, she arrived in Canada on XXXX XXXX, 2017, and claimed refugee protection. ANALYSIS [9] In accordance with Huruglica and Rozas del Solar,1 I carried out my own analysis of all of the evidence, including listening to the recording of the hearing, and I applied the correctness standard of review. Testimony under oath [10] In her memorandum of appeal, the appellant stands on the presumption stated in Maldonado2 that an applicant's testimony must be presumed to be true. However, I am of the opinion that this presumption is debatable and can be set aside if the member finds that the refugee protection claimant is not credible. It is well established that the RPD can find that a claimant is not credible because of various discrepancies, omissions, contradictions or inconsistencies. The RPD made a negative finding about the appellant's credibility that is, in my opinion, sufficient to rebut the presumption in question. Amendments to the initial account [11] The appellant made amendments to her initial written account to allege that her aunt was behind the kidnapping, that the criminals had asked her aunt for instructions while she was being held, that she had been beaten and threatened not to contact the police,3 and that among the threats made to her afterwards, her aunt had mentioned that the kidnapping was only the beginning. When asked why this information had been omitted from her initial account, the appellant stated that she did not want her account to be too long.4 [12] The RPD dismissed the appellant's explanation because it found that it was not credible. It was of the opinion that the catalysts of the written account were her aunt and the danger stemming from her objective of seizing the land that belonged to her sister (the appellant's mother). The RPD expected the appellant to clearly state the aunt's role in organizing the kidnapping in order to demonstrate the measures she had taken to put pressure on the appellant and her mother so that she would give up the land. The RPD concluded that the appellant was unable to establish, on a balance of probabilities, that her aunt was involved in the kidnapping incident. [13] In her memorandum of appeal, the appellant maintains that the RPD erred in failing to consider the chronological proximity of the threats made by her aunt and the kidnapping incident, which creates the presumption that her aunt was behind the incident. She maintains that the RPD was wrong in concluding that the amendments made to the account are the only things that indicate that the kidnapping was orchestrated by her aunt. She maintains that the RPD erred in failing to consider that her aunt was named in the initial account as being a suspect in the kidnapping. She maintains that the RPD was wrong in concluding that the two versions of the account, initial and amended, were inconsistent or contradictory. [14] With all due respect, I disagree with the appellant. While I admit that the time between the two events was short, I am of the opinion that it does not establish, on a balance of probabilities, that there exists a connection between the aunt's threats and the kidnapping incident. I note that question 2(a) of the BOC Form states the following: ...Who do you think caused the harm or mistreatment or threats; What do you think was the reason for the harm or mistreatment or threats that occurred; ...(Indicate dates, names and places, wherever possible.)5 [15] In light of the instructions in the BOC Form, the appellant was required to provide the name of the person who caused the harm, in this case her aunt, and to explain the reasons for the harm that occurred. The appellant should have known that her initial account was supposed to contain the allegations added through an amendment and not presume that her aunt was involved in the kidnapping incident. Furthermore, the appellant stated at the hearing that, in her BOC Form, she had forgotten to include the threats from the criminals to not call the police because she was afraid. The appellant was in Canada when she completed her BOC Form and did not explained what she was afraid of. I am of the opinion that the appellant's explanation is insufficient given that she cannot attribute these omissions to her unjustified fear. [16] Moreover, the appellant stated that she added these allegations after discussing it with her counsel.6 I note that the appellant was assisted by a legal firm when she filled out her BOC Form and was represented by counsel from that same firm at the hearing. Furthermore, I am of the opinion that the appellant's explanation for the omission of this information in her account so that it would not be too long is not convincing. In reality, her account must contain all of the important facts, including her aunt's involvement in the kidnapping incident. I would like to add that if the amendment had not been made to the initial account, the alleged kidnapping could have been part of generalized crime in Haiti. I am of the opinion that the RPD's conclusion on this matter is correct. Omission - threat from the criminals to not file a police complaint [17] The RPD concluded that the appellant was unable to establish, on a balance of probabilities, that the criminals had threatened her not to call the police. [18] In her memorandum of appeal, the appellant maintains that it was not unreasonable not to remember everything, especially because of the time passed since the kidnapping incident. [19] I note that the appellant's initial account states that she was kidnapped and released in exchange for ransom the same day. There is no mention of any bad treatment or any threats not to call the police in the initial account. In my opinion, being beaten and threatened are significant events and the appellant does not satisfactorily explain the omission of such significant allegations from her initial account. It was only after the amendment to her account that she alleged that her aunt was involved in the kidnapping incident and that she had been beaten and threatened. In Zeferino,7 the Federal Court stated that: ... the RPD is entitled to review the contents of the PIF before and after its amendment and may draw negative inferences about credibility if matters it considers important were added to the PIF by an amendment later. [20] In this case, I am of the opinion that the allegations added to the account later are significant and that the appellant did not satisfactorily explain the omissions raised. I am of the opinion that the RPD did not err in its conclusion and that it is correct. Appellant's behaviour [21] At the hearing, the appellant stated that she lived in her parents' home until she left for her paternal aunt's house in XXXX, and explained that this delay was attributable to the fact that she had to continue getting massages so she could get better and hit the road.8 She also stated that her aunt would come to see her two or three times a week. With regard to how she protected herself, she stated that by staying home, she felt protected. The RPD did not accept the appellant's explanations and concluded that, given her aunt's ability and motivation to harm her, it reasonably expected for her to leave her parents' home immediately rather than stay under the same roof, especially since her aunt came to harass her regularly. The RPD found that the appellant's explanation lacked credibility and that her failure to act was incompatible with the alleged risk. [22] With regard to her move to XXXX, the appellant stated that a few days after her arrival and during her absence, someone showed up to the house and told her cousin that they were looking for her. She stated that she went to the village of XXXX, ten kilometres away, once a week to do laundry.9 When asked why she would go, since she was in XXXX to hide, she explained that her aunt was elderly and that she had to take the risk. The RPD concluded that the appellant's explanation was not satisfactory and that this element makes her behaviour incompatible with the presumed risk related to her aunt who, according to her statement, sent people to look for her. [23] With regard to her delay in leaving XXXX, the RPD concluded that the appellant's decision to remain in that area for more than six weeks longer without acting is incompatible with the alleged risk. The RPD concluded that the appellant's explanation to justify her inaction, that her aunt would find her even if she tried to go elsewhere, lacks credibility. The RPD found that this behaviour even further undermines the appellant's overall credibility. [24] In her memorandum of appeal, the appellant maintains that she provided a reasonable explanation in that regard, namely, that it was difficult to organize a move, the lack of funds and the paternal aunt's willingness or ability to take her in. With regard to her delay in leaving Haiti, the appellant maintains that the RPD should have considered the expenses related to travelling for a single women who had been unemployed for a few months and the risk that had been growing gradually since her departure from XXXX. [25] Firstly, I note that the appellant stayed at the family home even though she knew her aunt was behind the kidnapping incident and continued to visit her at her parents' home. I considered the appellant's explanation that she intended to continue her care sessions, but nothing in the evidence shows that, on a balance of probabilities, her state of health would have prevented her from going to hide elsewhere. [26] I also note that the appellant stated she arrived in XXXX on August 5, 2014, and that on August 10, 2014, someone who was looking for her visited her cousin. However, the appellant continued to leave the house once a week to do laundry. Furthermore, she only left XXXX approximately six weeks after that person's visit. When asked by the RPD why she did not hide elsewhere after that person's visit to XXXX, she replied that she had intended to leave, but believed that her aunt would find her no matter where she tried to go. This explanation is not convincing and does not match the behaviour of a person who fears for their life. I also note that the appellant did not state before the RPD that her lack of funds was preventing her from leaving at an opportune time. In my opinion, the appellant's behaviour, assessed as a whole, leads to the conclusion that it was not compatible with the behaviour of a person who fears for their life. I am of the opinion that the RPD's conclusion in that regard is correct. Omission regarding the basis of the prospective risk [27] In the amended version of her account, the appellant states that her aunt was still trying to take over her mother's land. At the hearing, the appellant stated that her aunt had come looking for her on several occasions since she had left Haiti and that the last time was on July 12, 2019.10 When asked why she had failed to mention, in either her initial or amended account, that her aunt had been trying to locate her since she had left Haiti, she replied that when she stated in her amended account that her aunt was still trying to take over the plot of land, it meant that her aunt was trying to see her.11 [28] The RPD did not accept this explanation and considered that it reasonably expected the appellant to explicitly state that her aunt had been asking to see her since she left Haiti and that she was still asking to see her. It was of the opinion that the omission was significant and that the appellant's attempt to reconcile her testimony and her amended account lacks credibility. The RPD concluded that the appellant failed to establish, on a balance of probabilities, that her aunt had asked to see her since she had left Haiti. [29] I note that the appellant does not challenge this conclusion and I do not see where the RPD would have erred in this regard. Appellant's profile [30] The RPD concluded that the appellant has support, would return to the life she was living before and would not be without a home or without help. The RPD alluded to the fact that the appellant is married to a permanent resident of Canada and that their union resulted in a daughter who was born in Canada. While the appellant stated that her husband would not accompany her if she returned to Haiti, the RPD considered that he represents additional family and financial support, especially since they are in a relationship and have a child. The RPD alludes to the fact that the appellant attended a trade school before leaving Haiti, that she worked in Haiti and Brazil and that she always lived alone in that country. The RPD concluded that the appellant failed to establish, on a balance of probabilities, that her profile matches the profile of vulnerable Haitian women, as established in the case law. [31] In her memorandum of appeal, the appellant maintains that the fact that she has been kidnapped in the past means that there remains a risk that she will be kidnapped and find herself vulnerable to groups of criminals. [32] I am of the opinion that the RPD's conclusion concerning the lack of prospective risk is correct. I am of the opinion that the appellant had to establish that her returning to Haiti represents a current or future objective risk for her. The appellant has not discharged her burden. Nothing in the evidence shows that the appellant risks being kidnapped if she returns to Haiti. The lack of evidence concerning a current or future risk was sufficient to reject the appellant's claim. [33] With regard to the appellant's profile, I note that kidnapping for ransom is an endemic problem in Haiti. However, I am of the opinion that the appellant will not find herself alone there. She will have family support because her parents, brothers and sisters live in Haiti in neighbouring regions and nothing demonstrates that she will not have their support. She is still in contact with her family.12 Furthermore, the appellant is educated, has worked in Haiti and travelled and lived alone in Brazil. Like the RPD, I note that the appellant is married to a Canadian resident, which leads to the conclusion that she will benefit from additional support from her husband. While the Refugee Appeal Division is sensitive to the situation of Haitian women, I am of the opinion that the appellant has not established that her fear is objectively founded from a prospective standpoint. I am of the opinion that the RPD did not err in its conclusion and that it is correct. CONCLUSION [34] I dismiss the appeal and confirm the determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Toni Jedid Toni Jedid July 31, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 FC 302, 1 ACWS (2d) 167 (CA). 3 Recording of the hearing from July 18, 2019: 01:43:54. 4 Ibid, 01:34:35 and 01:45:04. 5 Refugee Protection Division record, consolidated list of documents, document 2, appellant's Basis of Claim Form, question 2(a), p. 26. 6 Supra, endnote 3, 01:52:30. 7 Zeferino v. Canada (Citizenship and Immigration), 2011 FC 456 at paragraph 31. 8 Supra, endnote 3, 01:58:30. 9 Ibid, 01:17:16. 10 Ibid, 01:23:10. 11 Ibid, 02:13:45. 12 Ibid, 00:37:30. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-23860 RAD.25.02 (January 2020) Disponible en français 9 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 (January 2020) Disponible en français