MB8-22766

RAD File No. / No de dossier de la SAR : MB8-22766 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 October 7, 2019 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the person who is the subject of the appeal Me Claudette Menghile 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] The appellant, XXXX XXXX XXXX, is a citizen of Haiti. He alleges that he fears persecution from Pitit Dessalines supporters, by reason of imputed political opinion, and that his life is threatened by San Maman (GSM) gang members. He is claiming refugee protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act1 (IRPA). [2] In XXXX 2010, while working as a XXXX XXXX XXXX XXXX, the appellant allegedly stopped supporters from XXXX XXXX XXXX. He also claims to be a person in need of protection by reason of threats made against him by members of the Groupe San Maman, who blame him for his role in their arrest after they stole his motorcycle in XXXX 2010. After their release from prison, two individuals called XXXX XXXX and XXXX XXXX XXXX, members of both groups, went after the appellant and threatened his life. They allegedly used the party's network to hunt him down. The appellant left Haiti on XXXX XXXX, 2014, and illegally entered the United States. He worked there for several years before illegally entering Canada on August 5, 2017. [3] The refugee protection claim was heard on November 9, 2017. On September 26, 2018, the RPD rejected the claim on the basis of credibility issues. More specifically, the RPD did not believe the appellant's allegations because of his evasive and vague testimony, filled with contradictions, and behaviour that was inconsistent with his story of persecution and risk. [4] The appellant requests that the RAD set aside the RPD's determination and refer the refugee claim to another panel. He submits the following issue: did the RPD err in fact and in law in finding him not credible? [5] For the RAD, the determinative issue is to determine whether the RPD erred in finding that the appellant was not credible. [6] I am of the opinion that the appellant is not credible. [7] The appeal is dismissed and the RAD confirms the impugned determination. ROLE OF THE REFUGEE APPEAL DIVISION [8] The RAD reviews the RPD's decisions on a standard of correctness after conducting its own assessment of the evidence set before the RPD, including the evidence submitted at the hearing. The RAD must determine whether the RPD erred, as the appellant submitted. The RAD may defer when the RPD enjoys a meaningful advantage in the assessment of the credibility or the probative value of an oral testimony. [9] I have conducted an independent analysis of the evidence set before the RPD, including listening to the recording of the hearing. I have applied the correctness standard of review. ANALYSIS Credibility The appellant's testimony was not evasive [10] According to the appellant, the RPD erred by qualifying his testimony as [translation] "evasive and lacking details."2 [11] The RPD concluded that the testimony also brought up contradictions and inconsistent behaviour that undermined the appellant's credibility.3 [12] I do not believe the appellant's testimony was evasive; in my opinion, he directly answered the questions. However, I agree with the RPD on the fact that it lacked details and specificity, and I believe that this, as well as certain important omissions, are sufficient to rebut the presumption of truthfulness of the appellant's testimony, as described in the following reasons. The delay in applying for refugee protection undermines the appellant's credibility [13] The appellant considers that the RPD erred by finding that his delay in applying asylum when he arrived in the United States undermines his credibility. He argues that he claimed refugee protection in Canada when his claim for asylum in the United States was rejected.4 [14] The RPD found that the appellant's credibility is undermined for the following reasons: 1) [translation] "It is reasonable to expect someone who fears for their life in their country of origin to mention it to the authorities of the first country in which they set foot, or that they actively look for ways to regularize their status in that country, as soon as possible."5 2) It does not accept the appellant's explanations in which he claims that he did not know what a refugee protection claim was when he arrived, and did not take steps to learn about his options. 3) It rejects the appellant's claim that his poor education explains the shortcomings in his approach. [15] The RPD did not err when it found the appellant's credibility to be undermined by his behaviour when attempting to claim asylum in the United States, for the following reasons: [16] The appellant left Haiti on XXXX XXXX, 2014. After arriving illegally in the United States, he was detained for a few days, then obtained a work permit. He states that he claimed asylum on XXXX XXXX, 2015, and that it was rejected.6 At the hearing, the appellant explained that he did not know that he had to submit a claim and that he could stay as soon as he arrived in the United States. He claims that he later learned from a co-worker that he could submit a claim. I believe that it is unlikely that a person who arrived illegally in the United States and who was detained for several days would not be informed of the possibility of submitting an asylum claim. The appellant submitted his claim nearly a year after he arrived. I am of the opinion that as long as the appellant could work and stay in the United States, he was not interested in submitting an asylum claim. He did so after a year so that he would not lose his rights. I take into consideration that the appellant is poorly educated, but I believe it does not explain his behaviour, especially as he testified having asked two or three lawyers. This behaviour is inconsistent with that of a person who fears for their life if they were to return to their country of citizenship and undermines the appellant's credibility. [17] The appellant testified that when Donald Trump became president, he received a deportation order.7 On XXXX XXXX, 2017, he received a document titled Notice of lack of Jurisdiction (Expedited Removal) - US Citizenship and Immigration Services8 (USCIS), in which the USCIS states it has no jurisdiction because the asylum claimant received a deportation order. According to the appellant, he was scared because the fact that he received the letter confirmed that he would be deported. The appellant confirmed that he talked to several lawyers during this process. I am of the opinion that he did not complete his asylum claim process; the letter submitted as evidence confirms that the USCIS did not have jurisdiction, which does not mean that the appellant did not have any other options and that his claim was rejected. When the RPD asked him about this, he confirmed that one of the lawyers told him he could not 100% guarantee the outcome of the process, not that he did not have other options. The appellant testified that he did not seek a lawyer's opinion on his plan to come to Canada. I believe that the unlikeliness of his asylum claim in the United States being accepted does not justify the fact that he did not complete the process. This is not a fatal flaw, but does undermine the appellant's credibility. The appellant did not show that he worked as a XXXX XXXX [18] The appellant argues that the RPD erred by giving too much weight to the omission of his position as XXXX XXXX on his immigration forms.9 [19] The RPD noted that the position of XXXX XXXX was not mentioned on the appellant's forms. Moreover, the RPD did not accept the appellant's justification that because it is a one-day commitment, he did not think it was necessary to mention it in his forms. The RPD is of the opinion that it is the starting point of the appellant's story of persecution.10 [20] I agree with the RPD that the position of XXXX XXXX is the starting point of the appellant's story of persecution and a key element of his allegations. The appellant claims that he would be facing a serious risk of persecution by supporters of the Pitit Dessalines party if he were to return to Haiti, because in his role as XXXX XXXX, he removed supporters from his XXXX XXXX. The political persecution allegedly started when he called the police to remove four (4) individuals who were trying to [translation] "wreak havoc" to cancel the XXXX XXXX XXXX XXXX XXXX, to avoid their party's defeat. The supporters then imputed to the appellant a political opinion against their party. I believe that while the appellant did omit this position from his forms, it is not a fatal mistake. However, he did not show, on a balance of probabilities, that he held this position of XXXX XXXX. [21] The RPD erred by finding that the omission of the XXXX XXXX position in the appellant's IMM5669 form undermined his credibility. The appellant did mention this position in his account (Basis of Claim Form) but not in his IMM5669 form. There are three places in this form where the appellant could have mentioned it. Question 8 is about the claimant's personal history. From 2007 to 2010, the appellant writes that he was unemployed. The question specifies that if the person was not working, they can provide information about what they were doing, such as if they were unemployed, studying, retired or in detention. It is true that the question does not mention volunteer activities. I agree with the appellant, it is unclear whether he should have mentioned his position as XXXX XXXX here. Question 9 concerns membership or association with organizations. The question specifies that this includes being a member of, among other things, a political organization, as well as being associated with one or supporting one. I agree with the appellant that the answer to the membership question 9 did not have to include this information. He does not claim to have any political opinion, but that Pitit Dessalines believes he does, and considers him to be an opponent. Question 10 concerns government positions, such as civil servant, judge, police officer, or employee in a security organization. While it is true that the position of XXXX XXXX could be considered a government position, it is not clearly stated in the form. The appellant mentioned his position of [translation] "XXXX XXXX in his account." The fact that he omitted this in his IMM form is not fatal to his claim and does not undermine his credibility. [22] I am of the opinion that, on a balance of probabilities, the appellant did not show that he held the position of XXXX XXXX of a polling station, particularly because his testimony lacked details about information that a XXXX XXXX should know. He also did not demonstrate that he called the police to remove Pitit Dessalines supporters. The Refugee Protection Division Rules11 state that the refugee protection claimant must provide documents and other elements to support their refugee protection claim. Considering the appellant's credibility issues, I would have expected him to provide a more detailed account of his role, as well as evidence corroborating his allegations. The appellant also did not explain how he obtained the position of XXXX XXXX or what it entailed. His explanations on this position are minimal. He answered that the position of XXXX XXXX XXXX XXXX does not require training. I agree with the RPD that it seems unlikely that this position would only require a meeting on the night before the election.12 Even though Haiti's electoral system is different from Canada's, I doubt that the position of XXXX XXXX is a one-day commitment that does not require involvement before or after election day. [23] When the RPD asked him about the results of the vote, he only gave basic information about the elected individuals, such as Martelly elected as president, Dr. Policamp as senator and Hudson as representative. He did not know the results for the Pitit Dessalines party and gave no information about the results at his polling station. The appellant does not claim to have gone to the polling station or to have volunteered; he claims to have been its XXXX XXXX. Even if it truly is a volunteer position, it carries certain responsibilities and I would expect the XXXX XXXX to participate in the counting of the ballots and to know more about the results than the average voter. [24] The appellant alleges that after his accusation, police officers came to arrest the troublemakers. He did not file a police report on the events, despite the fact that these reports are available in Haiti. The appellant knew of the existence of these reports, as he filed one when his motorcycle was stolen. [25] For these reasons, the RPD's decision is correct. The appellant is not credible. He did not show that held the position of XXXX XXXX or that he stopped individuals from making trouble on behalf of the Pitit Dessalines party on the day of the election by having them arrested and that, as a result, he would be persecuted for his alleged political opinion. Consequently, the appellant did not show that there is a serious possibility of persecution by reason of his political opinion if he were to return to Haiti. No threats on the appellant's life by members of the Groupe San Maman criminal group [26] Even though I find that the appellant is not credible pursuant to section 96, he argues that he was threatened by the criminal group that stole his motorcycle. As the allegations are different, I will assess the appellant's credibility for these allegations under section 97. [27] When the RPD analyzed the changes in the appellant's testimony concerning the identity of the persecuting group, it notes that [translation] "the appellant testified that when it was stolen, he did not notice that the thief was one of the individuals he had confronted in the polling station several weeks earlier." [28] The appellant argues that the RPD erred when it concluded that [translation] "the fact that the appellant did not notice that the thief was one of the troublemakers at the polling station on XXXX XXXX, 2010."13 For the appellant, this does not change anything, as the police found the motorcycle thieves, charged and imprisoned them, and they only sought revenge on the appellant once their sentence was over. [29] According to the appellant, the gang members who stole his motorcycle were connected to the Pitit Dessalines supporters and allegedly used their political network to hunt the appellant down. As I concluded that the appellant did not show that the events surrounding the 2010 election happened, I am of the opinion that he also did not show the nexus between the Pitit Dessalines party troublemakers and the motorcycle thief. [30] The RPD concluded that the appellant changed his testimony concerning the name of the persecuting group during the hearing. This shifting testimony undermines the appellant's credibility.14 [31] According to the appellant, the RPD should have given him the benefit of the doubt when it analyzed his testimony on the persecuting group's identity.15 [32] The RPD's decision is correct; the appellant's testimony concerning the group's identity is inconsistent and adds to the other credibility issues. The RPD did not have to give him the benefit of the doubt. At the beginning of the hearing, the RPD asked the appellant whether some of the information he told the police when he filed his complaint was missing from the report.16 The appellant stated that it was. He told the police officers that the group was called San Maman (GSM) without identifying any individual in particular, as he did not know on the night of the event that the man called XXXX XXXX was one of the thieves. Later,17 he claimed he had learned the name of the gang on the radio, after the arrests. When the RPD asked him to explain this contradiction, the appellant claimed that he only told the police officers that his motorcycle had been stolen, without naming anyone. When the RPD insisted, the appellant came back to the first version and claimed that he gave the group's name. He specified that this group has always stolen motorcycles in the city. I am of the opinion that these inconsistencies in the testimony undermine the appellant's credibility. [33] The RPD believes that the certificate itself is not enough to lend credibility to a testimony that completely lacked credibility. [34] According to the appellant, the RPD erred by giving no probative value to a complaint certificate from the Haitian police.18 [35] Considering my concerns about the appellant's credibility, I give no weight to this document meant to establish that he has been persecuted by supposed members of a gang, including, allegedly, this thief. I believe the complaint certificate shows that the motorcycle was stolen on XXXX XXXX, 2010, at around XXXX XXXX XXXX p.m., by an unidentified armed individual. The appellant's motorcycle was allegedly stolen, and that was the end of it. The RPD's decision is correct. The appellant is not credible and did not show that it was likely that GSM would threaten his life if he were to return to Haiti. [36] The RPD's decision is correct. The appellant is not credible. His behaviour, his failure to finalize his asylum claim in the United States, the inconsistencies and lack of specificity in his testimony, his failure to provide corroborating and reasonably available evidence allow me to refute the presumption of truthfulness. [37] I confirm the RPD's decision, namely that the appellant did not show that there is a well-founded fear of persecution on a Convention ground or that, on a balance of probabilities, he would be subjected to a risk to his life or a risk of cruel and unusual treatment if he were to return to Haiti. CONCLUSION [38] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely that XXXX XXXX XXXX is not a Convention refugee pursuant to section 96 of the IRPA or a person in need of protection within the meaning of section 97 of the IRPA. [39] The appeal is dismissed Agnès Connat Me Agnès Connat October 7, 2019 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Appellant's memorandum, paragraph 2. 3 Refugee Protection Division (RPD) Decision, paragraph 18. 4 Appellant's memorandum, paragraphs 13 to 17. 5 RPD Decision, paragraph 22. 6 Basis of Claim Form (BOC Form), question 6, page 8, Exhibit P-3, "Acknowledgment of Receipt, US Dept. of Homeland security." 7 BOC Form, question 2g), page 5. 8 Exhibit P-4, RPD Record, page 89. 9 Appellant's memorandum, paragraphs 4 to 7. 10 RPD Decision, paragraph 19. 11 Refugee Protection Division Rules, SOR/2012-256. 12 RPD Decision, paragraph 19. 13 Appellant's memorandum, paragraphs 11 and 12. 14 RDP Decision, paragraphs 20 and 21. 15 Appellant's memorandum, paragraphs 8 to 10. 16 RPD file, Exhibit P-2, pages 86 and 87. 17 Recording, from minute 32. 18 Appellant's memorandum, paragraphs 18 to 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-22766 RAD.25.02 (April 4, 2019) 10 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