MB5-04445

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 File No. / No de dossier de la SAR : MB5-04445 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 at Montréal, Quebec Appel instruit à Date of decision June 6, 2016 Date de la décision Panel Roxane Cyr Tribunal Counsel for the person who is the subject of the appeal François Jean Denis 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 INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting her claim for refugee protection. [2] The appellant is not presenting any new evidence and is not requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" or a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] The appellant had been a XXXX and the owner of XXXX XXXX XXXX since XXXX 2013. [5] She was apparently so successful that her competitors, XXXX XXXX XXXX and XXXX XXXX XXXX, which were located next door to XXXX XXXX, allegedly sent criminals to intimidate and threaten her so that she would shut down her business. They supposedly believed she was the reason for the decline in business at XXXX XXXX. [6] She allegedly received the first threatening call on XXXX XXXX XXXX 2014, (corrected on the day of the hearing to XXXX XXXX, 2014) telling her that her days were numbered. [7] The appellant left Haiti for the United States on XXXX XXXX, 2014, and went on a trip that brought her to Canada. She supposedly returned to the country on XXXX XXXX XXXX 2015, and resumed her job as a XXXX. On XXXX XXXX XXXX 2015, she allegedly discovered dead dogs outside her business. She reportedly received two threatening calls referring to the dead dogs and to the appellant being responsible for the decline of other businesses. The appellant reportedly filed a complaint with the police on XXXX XXXX XXXX 2015. [8] The appellant claims that she received several threatening calls in XXXX 2015. She reportedly filed a second complaint with the authorities on XXXX XXXX, 2015. An attempt was also allegedly made to set fire to her property on the night of XXXX XXXX to XXXX, 2015. The appellant reportedly filed a third complaint with the authorities on XXXX XXXX, 2015. [9] The appellant left Haiti for Canada on XXXX XXXX XXXX 2015. [10] Once in Canada, the appellant learned that criminals had gone to her home to threaten her on the night of XXXX XXXX to XXXX, 2015. On XXXX XXXX, 2015, the XXXX closed permanently. The family allegedly called the police, but they supposedly did not come. [11] The appellant claimed refugee protection around July 15, 2015. RPD DECISION [12] The RPD rendered a negative decision for the following reasons. [13] The RPD was of the opinion that the appellant's testimony was vague, unclear and lacking in spontaneity. According to the RPD, the appellant adjusted her testimony as questions were put to her. THREATENING CALLS - The appellant gave several dates for the same call in which threats were allegedly made to rape, kidnap and kill her (XXXX XXXX, XXXX XXXX and XXXX XXXX XXXX 2015). The appellant finally stated that the call came on XXXX XXXX XXXX 2015. There is no mention of that call in the Basis of Claim Form (BOC Form). The RPD drew a negative inference from that. - On the day of the hearing, the appellant amended the date of the call of XXXX XXXX, 2014, indicated at line 8 of question 2(a) of her BOC Form (see RPD record, page 14). She corrected it to XXXX XXXX, 2014. The RPD did not accept the appellant's explanations and drew a negative inference. - The appellant stated having received one threatening call in XXXX 2015, whereas it states in her BOC Form that the criminals called her three or four times that same month. The RPD did not believe the appellant's explanations and drew a negative inference. COMPLAINTS TO THE AUTHORITIES - The appellant gave two different dates for the first time she went to file a complaint with the police: XXXX XXXX and then XXXX XXXX, 2015. The RPD drew a negative inference from that. - The RPD drew a negative inference from the fact that it is not written in the report of XXXX XXXX XXXX 2015, that the appellant received a threatening call on XXXX XXXX, 2014. - The RPD drew a negative inference from the fact that the appellant did not indicate in her BOC Form that her parents had moved since she left because of attackers that had gone to her home on the night of XXXX XXXX to XXXX, 2015. [14] The RPD did not believe the appellant's allegations. According to the RPD, even if it had believed them, it still would have concluded that the appellant had not demonstrated a prospective risk. The appellant could set up a XXXX XXXX elsewhere in Haiti or even work as an employee at another XXXX, given that the basis of her fear is the success of her XXXX XXXX and the failure of other businesses. [15] At the same time, the RPD did not consider the police complaint reports (documents C-3 to C-5, pages 172 to 174 of the RPD record) sufficient to support the appellant's allegations. [16] The RPD further determined that the appellant had not established that she had a well-founded fear of persecution on the basis of her gender if she returned to Haiti. APPELLANT'S MEMORANDUM [17] The RPD erred by not taking into consideration the appellant's explanations for the credibility issues and by being unduly harsh in its assessment of those issues, particularly the following points: - The first call, which the appellant corrected at the start of the hearing as being XXXX XXXX XXXX 2015, and not XXXX XXXX, 2015. - The appellant's initial testimony that dead dogs were left at her doorstep on XXXX XXXX and the subsequent correction to XXXX XXXX, 2015, was a slip and she was not adjusting her testimony. - The RPD erred in its assessment of the facts with regard to the report of XXXX XXXX, 2015, when it stated that the document does not mention a serious event that occurred prior to the report. The RPD erred by making a distinction between the report and a complaint. - The RPD was unduly harsh in its credibility assessment by drawing a negative inference from the fact that the appellant did not write in her BOC Form that her parents had to move after she left because they had been scared off by criminals working for the XXXX XXXX. The RPD should have given the appellant the benefit of the doubt. [18] In addition, the appellant is of the opinion that she is a member of the particular social group of women under section 96 and that her fears are founded. [19] She also faces a risk of being personally subjected to a risk to her life under paragraph 97(1)(b). ROLE OF THE RAD [20] The RAD is an appeal tribunal for RPD decisions. [21] Federal Court decisions have established that the RAD is a "specialized (if not overspecialized) tribunal" (see Alvarez)1 and a hybrid appeal according to the current case law. The RAD "also has the authority to investigate, an authority the Federal Court judge...does not have." [22] The Federal Court of Appeal recently determined in Huruglica (2016 FCA 93, paragraph 70) that the RPD, having heard the testimony, may have an advantage with regard to credibility. [70] ...there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim. [23] It is up to the RAD to determine in its analysis whether the RPD had an advantage owing to the fact that it heard the testimony, and in doing so, to see what degree of deference the RPD should be afforded in that regard. [24] Paragraph 103 of Huruglica (2016 FCA 93) specifies the standard of review to be applied by the RAD: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [25] Accordingly, the standard of review that the RAD should apply is that of correctness, except when the finding reviewed concerns an issue of credibility with regard to which the RAD believes it should show deference. [26] The RAD will consider in its analysis all of the evidence, including the testimony. It will determine whether the RPD's decision contains errors of fact, of law, or of mixed fact and law, and whether these are determinative to the outcome of the case and mean that the decision cannot be upheld using the correctness standard of review. In this case, the RAD will defer to the RPD's analysis on matters of credibility, as it had the advantage of hearing the testimony and seeing the appellant. [27] The RAD will intervene as necessary in accordance with subsections 111(1) and 111(2) of the IRPA. ANALYSIS [28] In its analysis, the RAD considered all of the evidence, including the recordings of the appellant's testimony before the RPD. [29] At the start of the hearing, the appellant made a correction to the date on which she had received the first threatening call. She indicated in her BOC Form that the call had been made on XXXX XXXX, 2014 (when she was in fact in the United States on that date, having left on XXXX XXXX XXXX 2014). In the hearing room, she stated that it was actually XXXX XXXX XXXX 2014. Her explanations for this error are that it was a friend, not her, who wrote her account and that it was not until the BOC Form was translated that she realized the mistake. The appellant is of the opinion that it is quite an understandable error and that it was open to her to correct that error before the hearing began. [30] That correction by the appellant is not insignificant, since that incident could not have occurred in XXXX 2014 given that the appellant was in the United States at the time, according to her passport. [31] The RAD considers the appellant's explanations to be unsatisfactory. She blames a friend who supposedly wrote her account. Considering that the appellant signed her BOC Form, thereby attesting to the accuracy of the information it contained, the RAD would have expected the appellant to have seen an error at that time and to have corrected it then, if there was an error. As the RPD points out, the appellant is an intelligent and educated person; she was previously a XXXX XXXX and, according to her statements, ran a successful XXXX XXXX, which requires knowledge, particularly in reading and figures. [32] The RPD did not err on that point, and this was not a trivial mistake on the appellant's part, since it marked the beginning of the appellant's problems in her country. Her credibility is undermined. [33] The RPD drew a negative inference with regard to the appellant's statement that criminals allegedly called her and threatened to rape, kidnap and kill her if she continued to work in the same way at her XXXX XXXX. The appellant stated that it was on XXXX XXXX, 2015, and then XXXX XXXX, 2015, and finally XXXX XXXX XXXX 2015. The appellant claims it was a slip. [34] It appears from reading the RPD's decision that the problem was not that the testimony was unclear and contradictory as to the date of the call, but rather that the appellant failed to mention that incident in her BOC Form. Yet these threats are serious; they are specific threats of kidnapping, rape and death. Once again, the appellant's explanation that her friend was responsible because she was the one who wrote the BOC Form cannot be accepted because the appellant specifies in her BOC Form (RPD record, page 23) that she is able to read French and fully understand the content of the form. The RPD did not err. [35] The RPD drew a negative inference from the fact that the appellant states that she told the police about the call of XXXX XXXX, 2014, in her complaint of XXXX XXXX, 2015, even though there is no mention of it in the report from that date. The appellant submits that the RPD confused the report and the complaint and that it did not differentiate between the two. [36] The RAD is of the opinion that the RPD clearly explained the source of the credibility problem in its analysis of the report. The report is a transcript of the appellant's statements, as evidenced by the text that relates the appellant's statement using "I". In the circumstances, the RPD clearly explained that it was not credible, if the appellant had mentioned the first call in XXXX 2014, for it not to be written in the report. The RAD is of the opinion that the RPD did not err on this point and that this undermines the credibility of the appellant's allegations. [37] As for the credibility issue raised by the RPD regarding the fact that the appellant did not write in her BOC Form that her parents had to go live with friends following the incidents of XXXX XXXX to XXXX, 2015, because they were afraid, the appellant is of the opinion that it is minor and has little impact on the credibility of the story, and that she should have been given the benefit of the doubt. The RAD agrees with this argument. It is a minor point and its impact on credibility is minimal. [38] However, the points raised above are sufficient, in the RAD's opinion, to find that the appellant is not credible on essential aspects of her allegations. [39] The appellant's fear, according to the evidence, is harm at the hands of criminals working for XXXX XXXX XXXX XXXX that blame her for the decline in their business. [40] Other than the fact that the appellant stated that the criminals threatened to rape and kidnap her, which was found to be not credible, the issue of fear as a woman under section 96 was not invoked by the appellant. [41] For that reason, the RAD does not have to address that issue and perform an analysis under section 96. Since the appellant did not invoke a fear related to her gender, she therefore does not have a subjective fear under that provision. [42] The RAD is of the opinion that the other factors on which the RPD relied do not contain errors and are sufficiently probative to find that the appellant is not credible. [43] The RPD did not err in this matter and it did not commit an error requiring the RAD's intervention. [44] The RPD rendered the correct decision. REMEDY [45] For these reasons, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [46] Her appeal is dismissed. Roxane Cyr Roxane Cyr June 6, 2016 Date IRB translation Original language: French 1 Alvarez v. Canada (Minister of Citizenship and Immigration), 2014 FC 702; para. 28. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB5-04445 9 RAD.25.02 (2014.09.11) Disponible en français