MB9-09316

RAD File No. / No de dossier de la SAR : MB9-09316 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 August 28, 2020 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Me Moriba Alain Kone 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 is a citizen of Haiti. He is appealing the decision of the Refugee Protection Division (RPD), dated February 8, 2019, rejecting his claim for refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). [2] The RPD found that the appellant is not credible with respect to the basis of his refugee protection claim because of a significant contradiction in his evidence and because he demonstrated behaviour that is inconsistent with his fear in Haiti. The appellant submits that the RPD erred in its assessment of his credibility and did not consider all the evidence. He is asking the Refugee Appeal Division (RAD) to allow the appeal and determine that he is a Convention refugee or a person in need of protection or hold a new hearing before the RAD. OVERVIEW [3] The appellant ran a shop in Haiti. He alleges that he was the victim of three burglaries, including on XXXX XXXX, 2014, when criminals followed him after his shop closed and took his money. Then, on XXXX XXXX XXXX 2015, and XXXX XXXX, 2016, criminals broke into his shop, stealing most of the merchandise. Fearing for his life, the appellant left Haiti for the United States on XXXX XXXX, 2017. He then came to Canada on XXXX XXXX XXXX 2017, to claim refugee protection. [4] The appellant amended his written account on December 27, 2018, to add that on XXXX XXXX XXXX 2014, individuals claiming to be members of the Parti haïtien Tèt Kale (PHTK) [Haitian Tèt Kale Party] approached him at his shop to ask him to help fund their party, which the appellant refused. He alleges that this was what triggered his problems and the burglaries. [5] The appellant alleges that he still fears for his life if he were to return to Haiti. DETERMINATION [6] After carrying out an independent analysis of all the evidence on the record, including the recording of the hearing, I share the RPD's concerns regarding the appellant's credibility. I therefore confirm the determination of the RPD that the appellant has failed to establish that he is a Convention refugee or a person in need of protection. [7] The appeal is dismissed. ROLE OF THE REFUGEE APPEAL DIVISION [8] The RAD must review the RPD's decision and carry out its own analysis based on all the evidence on the record to determine whether, in light of the appellant's arguments, the RPD erred. The applicable standard of review in this case is the standard of correctness.1 NEW EVIDENCE AND NEW HEARING BEFORE THE REFUGEE APPEAL DIVISION [9] The appellant submitted an affidavit before the RPD presenting [translation] "the evidence produced before the RPD...that was not properly assessed" or that was not in its original version. In addition, the affidavit contains allegations to [translation] "explain the panel's misunderstandings with respect to his record."2 [10] Subsection 110(4) stipulates that, on appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. To be admissible, the evidence must also be credible, relevant and new.3 [11] I am of the opinion that the evidence that was already before the RPD, although in a form other than the original, cannot be considered new evidence under subsection 110(4). In addition, the quality of the photocopies submitted before the RPD did not have an impact on the RPD's decision. [12] The appellant's allegations clarifying certain points are not admissible as new evidence either. The appellant had ample opportunity to testify about the issues before the RPD. He was also represented by his counsel who was able to provide any clarification deemed necessary. [13] In conclusion, I am of the opinion that the appellant's affidavit and the evidence attached are not admissible before the RAD. [14] The appellant requests that the RAD hold an oral hearing.4 A hearing is not as of right. The RAD may grant an oral hearing only if the new documentary evidence is admitted on appeal, in accordance with the criteria set out in subsection 110(6) of the IRPA. In this case, the new evidence was not considered admissible. Consequently, the request for an oral hearing is denied. ANALYSIS [15] The appellant generally submits that the RPD erred in its analysis of his credibility by carrying out a simplistic examination of his situation and focusing on the details, not on what was essential.5 I cannot accept this argument. Persecution in connection with the appellant's refusal to help fund the Parti haïtien Tèt Kale party [16] The RPD concluded that the appellant failed to establish, on a balance of probabilities, the incident of XXXX XXXX, 2014-namely, the incident during which he allegedly refused to help fund the PHTK party and which he states is the reason for the attacks-and, consequently, failed to demonstrate a nexus to the Convention. [17] The appellant does not specifically dispute this conclusion, but submits that the RPD erred by not conducting an analysis under section 96 of the IRPA. [18] I am of the opinion that the RPD correctly concluded that the evidence on the record does not establish that the harm he suffered was the result of his alleged refusal to help fund the PHTK. First, he testified that he did not know whether the alleged attacks and burglaries were all connected to the PHTK. I also find it problematic that the appellant failed to mention the incident of XXXX XXXX, 2014, in his original Basis of Claim Form, despite the fact that this incident is allegedly at the root of his problems. I am not satisfied with the appellant's explanation that he had completed the form in a hurry, especially in light of the fact that the appellant was represented by a lawyer during his refugee protection claim process. [19] Furthermore, the complaint filed with the police regarding the burglary on XXXX XXXX, 2015, does not corroborate that his attackers were tied to the PHTK or that the reason for this burglary was political in nature. [20] As a result, I conclude that the RPD did not err in analyzing the refugee protection claim under subsection 97(1), as the appellant did not establish that the incidents experienced have a nexus to the Convention by reason of his political opinion. [21] The appellant further alleges that the RPD did not carry out a separate analysis of the refugee protection claim under subsection 97(1) of the IRPA.6 This argument is without merit since the RPD correctly carried out the analysis of the claim under subsection 97(1), as explained above. However, the RPD rejected his claim for lack of credibility. The contradiction with respect to the incident of XXXX XXXX, 2016 [22] The RPD did not believe the appellant's allegations that he was the victim of a burglary on XXXX XXXX, 2016, during which he was shot at, which forced him to take refuge in Croix-des-Bouquets, because the evidence shows that he was not in the country at that time. [23] The appellant alleges that the RPD erred in rejecting his explanations regarding his entries to and exists from the Dominican Republic and in finding that he was absent from Haiti at the time of that incident.7 [24] In this regard, I agree with the RPD that the stamps in the appellant's passport reliably demonstrate that the appellant travelled to the Dominican Republic on XXXX XXXX, 2016, and that he left this country on XXXX XXXX, 2016.8 Contrary to what the appellant alleges, the RPD did consider his explanations that, according to the law, he could do two trips under the same stamp and that only a small stamp would be placed next to the entry stamp to indicate that he had paid the exit fee.9 However, the RPD correctly rejected this explanation as unsatisfactory, since no such stamp can be seen next to the entry stamp from XXXX XXXX, 2016, and the appellant did not provide the statute describing this process to the panel. [25] I can also see that, contrary to the appellant's statement that stamps are not used when exiting the Dominican Republic, the stamps in his passport show the opposite and, in particular, that his first exit from the Dominican Republic after his entry on XXXX XXXX, 2016, was on XXXX XXXX XXXX 2016. [26] Consequently, I concur with the RPD that the stamps in his passport establish that the appellant was not in Haiti at the time of the incident on XXXX XXXX, 2016, which seriously undermines his credibility. The documentary evidence [27] The RPD did not believe the appellant and rejected his evidence in connection with the burglary on XXXX XXXX XXXX 2015, as non probative. [28] The appellant submits that the RPD erred in rejecting all the evidence submitted and the appellant's complaint regarding the incident of XXXX XXXX, 2015.10 He submits that the RPD thereby breached the duty of fairness by rejecting his evidence without giving him the opportunity to demonstrate its veracity.11 [29] First, I note that the RPD questioned the appellant about his complaint to the police concerning the burglary on XXXX XXXX XXXX 2015. He explained that the date of the complaint is wrong because the events took place in 2015, not 2016. In addition, he explained that the police had misstated in the complaint that the 2015 burglary occurred at his home instead of his shop, which was an hour from his home. [30] As a result, contrary to his allegation, I consider that there was no breach of procedural fairness or of the appellant's right to be heard in relation to that evidence as the appellant had the opportunity to provide any necessary clarifications regarding that evidence. [31] However, the RPD rejected the complaint because of the appellant's overall credibility problems and his behaviour that was inconsistent with the alleged fear in Haiti (see paragraph 34 below). I am of the opinion that the RPD did not err in this regard. [32] Furthermore, I am of the opinion that the explanations provided by the appellant regarding the irregularities in the complaint made to the police are unsatisfactory. This further undermines his credibility and the probative value of this evidence. [33] As for the other documents submitted by the appellant, namely, the invoices related to his business and the objective evidence from the National Documentation Package (NDP) on Haiti, I am of the opinion that the RPD was not required to address them at the hearing or in its decision because they are not relevant to the analysis of the appellant's credibility in this case. Lastly, the statement of XXXX XXXX is in Creole and, consequently, cannot be considered by the panel. Inconsistent behaviour [34] The RPD concluded that the appellant failed to demonstrate behaviour consistent with his fear in Haiti since he delayed leaving the country for XXXX months, despite the fact that he had a visa for the United States, because he wanted to settle his financial accounts with his creditors in the Dominican Republic. The RPD also noted that the appellant travelled to the Dominican Republic five times since the last alleged incident on XXXX XXXX XXXX 2016, and he voluntarily returned to Haiti each time, showing a lack of subjective fear.12 The appellant did not dispute these conclusions, which I consider correct. [35] Based on the foregoing, I agree with the RPD that the appellant has failed to credibly establish the basis of his refugee protection claim. CONCLUSION [36] Pursuant to paragraph 111(1)(a) of the IRPA, I confirm the determination of the RPD that the appellant, XXXX XXXX XXXX, has not established that he is a refugee or a person in need of protection under section 96 or 97 of the IRPA. [37] The appeal is dismissed. (signed) Bianca E. Suciu Me Bianca Eleonora Suciu August 28, 2020 Date IRB translation Original language: French 1 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, paras. 90 and 91; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 70-74. 2 P-2, appellant's record, appellant's affidavit, pp. 12-26 of the appellant's record. 3 Canada (Citizenship and Immigration) v. Singh, [2016] 4 FCR 230, 2016 FCA 96. 4 P-2, appellant's record, appellant's memorandum, p. 1. 5 P-2, appellant's record, appellant's memorandum, paras. 8 and 14. 6 P-2, appellant's record, appellant's memorandum, paras. 17, 18 and 40. 7 P-2, appellant's record, appellant's memorandum, paras. 15 and 40. 8 SPR-1. Refugee Protection Division (RPD) record, appellant's passport, p. 56. 9 SPR-1. RPD record, RPD decision, paras. 18-22. 10 P-2, appellant's record, appellant's memorandum, paras. 11, 25 and 40. 11 P-2, appellant's record, appellant's memorandum, paras. 28-37. 12 SPR-1. RPD record, RPD decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-09316 RAD.25.02 (January 2020) Disponible en français 7 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