TB9-18625

Dossier de la SAR / RAD File : TB9-18625 Huis clos / Private Proceeding Motifs et décision ? Reasons and decision Personne en cause XXXX XXXX XXXX Person who is the subject of the appeal Appel instruit / entendu à Montréal, QC Appeal considered / heard at Date de la décision October 8, 2019 Date of decision Tribunal Julie Corry Panel Conseil de la personne en cause Tina Hlimi Counsel for the person who is the subject of the appeal Représentant(e) désigné(e) S.O. Designated representative Conseil du ministre S.O. Counsel for the Minister MOTIFS DE DÉCISION OVERVIEW [1] XXXX XXXX XXXX is a citizen of Haiti and is appealing the decision of the Refugee Protection Division (RPD) which rejected his claim for asylum. [2] I deny the appeal and confirm the decision of the RPD.1 [3] The RPD did not err in its conclusion that the Appellant was not credible about his fear of an individual and his thugs who had attacked and threatened him over a love interest. ALLEGED FACTS2 [4] The Appellant's allegations were summarized as follows: [5] He states that, were he to be returned to Haiti, he would be persecuted by the former boyfriend of his girlfriend XXXX XXXX. [6] The Appellant met XXXX at a friend's birthday celebration in June of 2016. They began dating and on September 13, 2017, XXXX former boyfriend, XXXX, accompanied by three other men, assaulted the Appellant. XXXX warned the Appellant to stay away from XXXX. He threatened to kill him if he did not. A second more serious assault took place on XXXX XXXX, 2017, during which a firearm was pointed at the Appellant and he was seriously beaten. The Appellant escaped further harm when a rival "gang" happened on the scene, causing XXXX and his men to turn their focus from the Appellant. As the two gangs fell to fighting, the Appellant was then able to escape. [7] Instead of going to his own home, the Appellant went to the home of his friend XXXX XXXX. He remained with XXXX, who found someone to treat his injuries and called in sick on his behalf. XXXX also told the Appellant's mother what had happened and advised her to exercise caution if someone were to come to the family home looking for the Appellant. Nonetheless, a week later, the Appellant's mother was forced to leave her home and move in with his brother because XXXX thugs were harassing her. [8] The Appellant stayed with XXXX for a little over a week. On XXXX XXXX, 2017, he went to stay with one of XXXX friends, XXXX, in XXXX XXXX. He chose to go to XXXX XXXX because, not only was it where his mother was from, he thought it unlikely that XXXX would look for him there. However on XXXX XXXX, 2017, XXXX did in fact turn up at XXXX house under the guise of being his brother and asking for him. As XXXX drove them back to Port-au-Prince, the Appellant came to the conclusion that he could no longer live safely in Haiti. With XXXX help, he obtained a ticket to the U.S. and left Haiti three days later. [9] The Appellant arrived in the U.S. on XXXX XXXX, 2017. However, influenced by the current administration's immigration views, he did not make a claim for refugee protection in that country. Instead, acting on the advice of his friends, he came to Canada where he made a claim for protection. APPELLANT'S AFFIDAVIT IN THE APPEAL RECORD3 [10] The Appellant has submitted an affidavit dated July 22, 2019, that appears to explain his oral testimony and to criticize the reasoning of the RPD. The Immigration and Refugee Protection Act (IRPA) expressly limits admissible evidence on appeal to new evidence or evidence that was not reasonably available or obtainable at the time the asylum claim was rejected. I am ignoring the Appellant's explanations of his evidence presented at the RPD and his comments on the RPD reasoning. All of those parts of his affidavit are inadmissible, either because they are not new evidence or they are simply arguments that belong in the Appellant's Memorandum. The inclusion of affidavits like this one serves no useful purpose. [11] The Appellant has also included evidence in his appeal record that is already part of the RPD record, including his BOC. This also serves no useful purpose. SCOPE OF THE REFUGEE APPEAL DIVISION (RAD) REVIEW [12] When reviewing the RPD decision, I am required to independently assess all the evidence and determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD in the exceptional situation that I find that it had a meaningful advantage in the circumstances, and reasons will be provided in that situation.4 [13] The Appellant also identified the correctness standard of review, adding that the RAD owes no deference to the RPD on findings of fact and fact and law, and must conduct its own analysis of the issues and the evidence. ANALYSIS [14] The issue to be determined in this appeal is whether the RPD made errors in assessing the Appellant's credibility and prospective risk. [15] The RPD found that the Appellant testified in a seemingly straightforward manner. At this point I must say that I disagree. Upon listening to the recording of the hearing, I find that the Appellant's testimony lacked any kind of spontaneity and was instead a recitation of his BOC narrative, almost word for word. [16] In my view, the RPD erred in her first credibility finding, but not the second one, nor her assessment of the Appellant's prospective risk, as will be assessed below. [17] I find that the lack of spontaneity in the Appellant's testimony and lack of corroboration within his own supporting documents on the event that triggered his decision to flee Haiti, taken together, were significant and went to the heart of the Appellant's credibility as to whether he had been pursued by his girlfriend's former boyfriend and whether that put him at risk should he return to Haiti. [18] After conducting my own analysis of the evidence on the record, including listening to the recording of the hearing, I find that the Appellant's arguments on the second credibility finding, as well as prospective risk, are unfounded and that the RPD's overall decision is correct. Credibility-1. The identity of the Appellant's aggressor5 [19] The RPD found that the Appellant testified in a seemingly straightforward manner, yet found his allegations were not credible as they were implausible in one important detail, being the identity of his agent of persecution. [20] The Appellant fears XXXX, XXXX former boyfriend, whom she told the Appellant was an older, wealthy man and an influential member of the ruling political party. According to the Appellant, his influence grants him impunity with the police. [21] The RPD asked if XXXX had a surname, and the Appellant replied "no". [22] In the context of XXXX being a person who had had a relationship with the Appellant's girlfriend, who he said was wealthy and who was a member of the ruling party and who, purportedly, wields significant influence in the community, the RPD found that it was not plausible that the Appellant could not provide a last name for him. [23] The RPD went on to cite information in the National Documentation Package that shows that children in Haiti are given last names when their births are registered. [24] The RPD drew a negative credibility inference from the Appellant's inability to provide a last name for XXXX, noting also that the letters filed to support his claim do not provide a last name either. According to the RPD, this inability to fully identify his agent of persecution called into question the existence of the agent of persecution, because it was implausible in the circumstances that he and his friends would not know the basic details about the agent of persecution. [25] As well, the RPD found that because the Appellant did not provide any outside objective evidence corroborating the existence of XXXX, that this, added to his inability to name XXXX fully, created further questions about the purported agent of persecution that were not resolved satisfactorily through his testimony. [26] Finally, the RPD concluded that the presumption of truthfulness described in the Maldonado decision was rebutted by the implausibility finding relating to such a basic fact, that is, who is after the Appellant? [27] In his memorandum of argument in appeal, the Appellant clarifies that he is aware that individuals in Haiti have last names, but he was unaware of XXXX last name. What he meant when he answered "no" to the RPD's question "does XXXX have a surname" is simply that he did not know his last name. He reiterates that in his BOC, as well as in his friend XXXX supporting letter, they did not know much about XXXX. [28] The Appellant submits that the RPD should have asked him why he did not know XXXX last name, but rather than asking the Appellant further questions in response to this issue, the RPD instead moved on to further questioning and did not put the Appellant on notice at his hearing that his credibility was an issue with regard to XXXX identity and name. [29] The Appellant cites jurisprudence about how concrete reasons supported by cogent evidence must exist before a person is disbelieved, and a decision maker has the duty to provide these reasons in clear and unmistakable terms, which was not done during the hearing. [30] According to the Appellant, given his written statement in his BOC about his limited knowledge of XXXX, and his oath to tell the truth at the hearing along with his credible testimony, the RPD had no reason to doubt the Appellant's credibility in this matter and her conclusion was unreasonable. [31] The Appellant also argues that the RPD's credibility finding argument about a lack of evidence regarding XXXX existence was also unreasonable. The Appellant provided a letter from XXXX XXXX which independently confirms XXXX existence. [32] In my opinion, the RPD erred in finding that it was implausible that the Appellant could not provide a last name for XXXX. [33] It is commonly held that plausibility findings should be made only in the clearest of cases. In my opinion, it is possible that the Appellant did not go so far as to find out more about XXXX from his girlfriend or others, and I cannot say that this situation is outside the realm of what could reasonably be expected. 6 It is reasonably possible that the Appellant simply contented himself with knowing XXXX as such, and failed to investigate him further. [34] Furthermore, I agree with the Appellant that the RPD did not confront him with this issue during the hearing and should have asked follow-up questions about why he did not know XXXX last name. His argument in appeal that what he meant when he answered "no" to the RPD's question "does XXXX have a surname" is simply that he did not know his last name. This is logical to me. If the RPD member was going to hold this against him to the extent that she did, the topic merited more in-depth questioning. [35] As a result, it is my opinion that the RPD's plausibility finding is incorrect. [36] I also think the RPD erred in concluding that further questions were created about the agent of persecution because the Appellant did not produce any independent evidence of his existence. The Appellant produced supporting letters from three different people who refer to XXXX, directly or indirectly, and regardless, is not obliged to produce corroborating documentary evidence to support his allegations. [37] It is clear from the case law that the mere failure to present corroborative documentary evidence alone cannot justify a negative conclusion regarding a claimant's credibility.7 However in this case, the RPD said that the lack of corroborating documents, added to the fact that the Appellant did not provide a last name, gave rise to further questions about the purported agent of persecution that were not resolved satisfactorily through his testimony. This is different, and it was not the mere absence of corroborating documents that led the RPD to its negative conclusion. [38] I infer from the RPD member's reasons that she was expecting some kind of objective evidence about XXXX, apart from a source linked to the Appellant, perhaps from his political party, or a press article. The RPD stated that it would have been more likely than not that the Appellant would have been able to tender this other evidence given how prominent XXXX was, according to the Appellant. However, in my mind, I cannot think of what kind of objective evidence the Appellant could have produced, even if XXXX had been a prominent member of the ruling political party. It is more than unlikely that the Appellant would be able to obtain XXXX identification documents, or even something from the political party. It is also possible that there are no press articles from Haiti identifying XXXX. [39] That being said, the jurisprudence on this point says that where valid reasons to doubt a claimant's credibility exist, the RPD may draw negative credibility inferences from a failure to provide supporting evidence. However, these inferences may only be drawn where the claimant has also been unable to provide a reasonable explanation for his or her lack of corroborating material.8 [40] In the present case, the RPD did not ask the Appellant during the hearing why he did not have other documents corroborating XXXX existence and, in my opinion, this was the error. He was not confronted with this question by the RPD and not given the chance to provide an explanation. [41] As a result, the negative inference drawn by the RPD because of the lack of corroborating documents is incorrect. Credibility-2. Problems with XXXX letter9 [42] The RPD found that the letter from XXXX was a near-verbatim reproduction of the Appellant's narrative, but that it differed in one significant aspect. [43] The Appellant alleges that on XXXX XXXX, 2017, XXXX followed XXXX to XXXX home where he was hiding in XXXX XXXX, and where XXXX pretended to be the Appellant's brother. He alleged that when he checked his phone, he realized that XXXX had called him. [44] In his letter, XXXX does not mention going to XXXX house on XXXX XXXX, 2017. What he does say, is that he went to XXXX XXXX after the Appellant called him. The RPD put it to the Appellant that while XXXX was very precise in his letter, he said nothing about going to visit him or telephoning him on XXXX XXXX, 2017. The Appellant's only response was that XXXX had come to see him. [45] Counsel for the Appellant submitted, that as the Appellant did not pen the letter, he could not explain the contradiction. The RPD found that this may well be, however, it is a significant contradiction because if XXXX did not go to visit the Appellant on XXXX XXXX, 2017, then XXXX could not have followed him to XXXX house on that day as the Appellant alleged. Therefore, the RPD found that this aspect of his testimony was not credible. [46] The RPD went on to say that the event and the Appellant's want of credibility was even more significant because he claimed that it was this visit that triggered his realization that there was no place in Haiti where he could live safely. As such, the RPD found that the Appellant's overall credibility was seriously undermined. [47] The RPD further found, on a balance of probabilities, that XXXX was not pursuing the Appellant. [48] In his memorandum of argument on appeal, the Appellant respectfully submits that the RPD member misapprehended the evidence before her. He explains that when he realized that XXXX had come to XXXX home posing as his brother, he called XXXX and requested his assistance. XXXX letter writes, " Le XXXX XXXX 2017, j'ai reçu un appel en urgence tard dans la soirée pour aller prendre XXXX XXXX et le conduire à nouveau chez moi. " The Appellant argues that it is thus evident from this letter that XXXX picked up the Appellant in XXXX XXXX and then took him back to his home in Port-au-Prince for safety, as is corroborated in the Appellant's BOC narrative. [49] The Appellant argues that no negative credibility inference should have been drawn by the RPD against the Appellant. [50] I have reviewed XXXX letter, and the Appellant's argument does not make sense to me. I understand the sentence in the letter that says XXXX received an urgent call from the Appellant late in the evening to go and pick him up. [51] This does not answer the omission raised by the RPD that XXXX did not say he first went to visit the Appellant at XXXX, and tried calling him when he did not find him there. All it says is that the Appellant called XXXX late in the evening asking to be picked up. [52] The Appellant testified that on XXXX XXXX, 2017, XXXX went to XXXX XXXX first, and XXXX followed him. I agree with the RPD that the omission in XXXX letter is a significant one because if XXXX did not first go to visit the Appellant on XXXX XXXX, 2017, then XXXX could not have followed him to XXXX house in the first place. [53] XXXX letter said he went to get the Appellant after the Appellant called him asking to be picked up. The Appellant only called XXXX to pick him up after receiving XXXX call saying that the Appellant's brother had been by looking for him, which the Appellant testified was actually XXXX. The Appellant testified that XXXX followed XXXX to XXXX XXXX. [54] If XXXX had not been to XXXX in the first place, XXXX could not have followed him, and XXXX would not have called the Appellant saying his brother had been by. None of this could have happened. [55] I also agree with the RPD that this is even more significant because the Appellant claimed that it was this event on XXXX XXXX, 2017, that triggered his realization that there was no place in Haiti where he could live safely. [56] This is not a minor or peripheral issue. This was the event that crystallized the Appellant's basis of fear and when he made the mental decision to leave the country. [57] The RPD was correct to conclude that the Appellant's overall credibility was seriously undermined given this discrepancy and omission between his narrative and what was described in XXXX letter. [58] As a result, the RPD was also correct to conclude that XXXX was not pursuing the Appellant. Does the Appellant have a claim pursuant to s. 97 of the Immigration and Refugee Protection Act (IRPA)?10 [59] During the RPD hearing, counsel for the Appellant submitted that the claim should be assessed under section 97 of the IRPA. The RPD considered the evidence and its credibility findings in light of counsel's submissions. Having found that the Appellant was not credible with respect to important aspects of his testimony, and also finding that no nexus was established between what the Appellant stated he feared and a Convention ground, the RPD found that he had also not met his onus to establish that he was a person in need of protection as defined in section 97(1) of the IRPA. [60] In his memorandum of argument on appeal, the Appellant argues that because the RPD's credibility assessment was fraught with error, his claim should be reassessed pursuant to s. 97 of the IRPA by the RAD. He adds that he faces a personalized risk should he return to Haiti because he has been personally targeted and not just a victim of generalized crime. [61] As described in the above reasons, I found the RPD erred on the finding that it was not plausible that the Appellant could not provide XXXX last name, and that he should have produced corroborating documentary evidence to prove XXXX existence. [62] However, I concurred with the RPD and found that the Appellant's credibility was seriously undermined by the omission in XXXX letter and resulting inconsistency between the Appellant's narrative and what was described in XXXX supporting letter. [63] This was significant enough to conclude that the alleged event of XXXX XXXX, 2017, did not happen as the Appellant described it and that XXXX was not pursuing him, on a balance of probabilities, and yet he claimed that this was the trigger for his departure from Haiti. [64] The RPD's conclusion regarding s. 97 of the IRPA and that the Appellant has not provided credible and trustworthy evidence and thus has not met his burden to show that his experiences in Haiti make him a person in need of protection is therefore correct. [65] The Appellant's credibility was undermined to the extent that he has not discharged his burden of establishing a serious possibility of persecution if he were to return to Haiti or that he would be personally exposed to the risk of being subjected to torture or a risk to his life, or to the risk of cruel and unusual treatment or punishment. CONCLUSION [66] For these reasons, I confirm the decision of the RPD that XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection.11 [67] The appeal is denied. Julie Corry Me Julie Corry October 8, 2019 Date JC/lp 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sec. 111(1)(a). 2 RPD Reasons and Decision dated June 25, 2019, para. 2-6, at pages 4-5 of the RPD file (RPD Reasons); Appellant's memorandum dated August 1, 2019, para. 1-10, pages 45-47 of the appeal record (Appellant's memo); Basis of Claim form, with a detailed narrative (BOC), pages 11-24 of the RPD file. 3 See appeal record, pages 15-20. 4 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 (Huruglica). 5 RPD Reasons, para. 11-15; Appellant's memo, para. 15-27. 6 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776, para. 7. 7 Dundar v. Canada (Citoyenneté et Immigration), 2007 CF 1026, para. 21-22. 8 Ibid (emphasis added). 9 RPD Reasons, para. 16-17; Appellant's memo, para. 28-31. Exhibit 5, pages 54-57 in the RPD file. 10 RPD Reasons, para. 20-23; Appellant's memo, para. 32-36. 11 IRPA, sections 96, 97(1), 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ Dossier de la SAR / RAD File: TB9-18625 12 Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés Immigration and Refugee Board of Canada Refugee Appeal Division RAD.25.02 (04 avril 2019) Available in English