MB9-02821

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 : MB9-02821 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa Appel instruit / entendu à Date of decision July 17, 2019 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person(s) who is(are) the subject of the appeal Claudette Menghile Conseil(s) (de la/des) personne(s) 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 is a citizen of Haiti. The appellant is alleging that he cannot return to Haiti because supporters of the Rassemblement des démocrates nationaux progressistes (RDNP) [Assembly of Progressive National Democrats] wish to do him harm given that, in 2005, he left the party to support the Front de l'Espoir [Front for Hope] party for the 2005 election campaign. The Refugee Protection Division (RPD) rejected his refugee protection claim because of a lack of credibility. As explained below, I agree with the RPD that the allegations are not credible. [2] The RPD was correct to reject the refugee protection claim. The appeal is dismissed. ROLE OF THE REFUGEE APPEAL DIVISION [3] The Refugee Appeal Division (RAD) reviews RPD decisions by applying the correctness standard after conducting an independent assessment of the evidence before it.1 The exception to this rule concerns situations where the RPD enjoys a meaningful advantage in assessing the oral evidence it hears, which, in specific cases, may be owed deference. Unless otherwise noted below, I have applied the correctness standard. ANALYSIS [4] The appellant alleges that he joined the RDNP party in 2004 but that, in 2005, during the election campaign, he changed his affiliation to support René Préval's party, the Front for Hope (Fwon Lespwa) party. The appellant alleges that, following Mr. Préval's election, RDNP party supporters began persecuting former party members who had left the party. The appellant alleges in his Basis of Claim Form (BOC Form) that, on XXXX XXXX, 2006, RDNP supporters went looking for him in order to kill him. He states that they looked for him [translation] "at the home of a woman with whom I had had a child."2 The appellant left Haiti on XXXX XXXX, 2006. He travelled to the United States, where he lived for 11 years before coming to Canada in July 2017. [5] The RPD rejected the appellant's refugee protection claim owing to contradictions, omissions and inconsistencies between his testimony, his BOC Form, information provided by the Minister of Immigration, Refugees and Citizenship and the other forms he completed in connection with his refugee protection claim. The RPD noted the following issues: a. During the hearing, the appellant testified that he hid in Cap-Haïtien from XXXX XXXX, 2006, until he left Haiti in XXXX 2006. However, later in the hearing, he changed his testimony, stating that he went to Cap-Haïtien on XXXX XXXX, 2006, only when he left the country. b. In his BOC Form, the appellant states that the RDNP supporters looked for him at the home of his child's mother but, during the hearing, he stated that a friend had warned him by telephone that the supporters were looking for him. The story about the friend is not mentioned in his BOC Form. In addition, when the panel asked him when the supporters had gone to the home of his child's mother, he answered that it was on XXXX XXXX, 2005. No incidents from 2005 are mentioned in his BOC Form. c. The appellant submitted his Lavalas party membership card indicating that he had been a member since XXXX 2002, which is consistent with his oral testimony. However, in his IMM 5669 form, he indicates that he was a member of the Lavalas party from 2000 to 2017. He also indicates that his role was as a [translation] "XXXX," but during the hearing he stated that all he did was glue emblems. d. The appellant submitted a copy of the rejection of his asylum claim in the United States from XXXX 2008. The reasons set out in the appeal decision reveal that the appellant gave a different version of the events to the American authorities, stating that anti-Lavalas supporters came to fetch him at his brother's home in XXXX 2004. e. During the hearing, the appellant stated that, after his initial arrival in 2006, he never left the United States before coming to Canada in 2017. However, the Minister obtained biometric data from the American authorities showing that he left the United States in 2011 and 2013. [6] The appellant maintains that the RPD's finding with respect to his credibility contains multiple errors. After carefully listening to the recording of the hearing and reading the record, I am of the opinion that the RPD analyzed the appellant's refugee protection claim correctly and that the appellant's lack of credibility is the determinative issue. The RPD considered the appellant's profile when assessing his credibility [7] The appellant maintains that the RPD did not take into account that he is a man with little education, having completed only XXXX years of schooling. I disagree. [8] The panel treated the appellant respectfully at all times. As needed, the panel rephrased its questions to make sure the appellant fully understood. The panel's questioning was calm and non-confrontational. Throughout the hearing, the panel's tone and method of questioning suggested that it took into account the appellant's limited education. For the most part, the appellant's testimony was lucid and appropriate. Therefore, I agree with the panel that the appellant's contradictory statements about where exactly he was hiding between January and March 2006 suggest a lack of credibility, not a lack of understanding. The panel did not err on that point. The contradictions in the appellant's testimony undermine his credibility [9] The appellant submits that the contradiction between his testimony and his BOC Form regarding how he learned that the RDNP supporters were looking for him was [translation] "simply a date error made by the appellant.3" I disagree. [10] The panel asked a number of questions to confirm the appellant's testimony regarding the timeline of events. In my opinion, his contradictory and changing testimony was very telling. Towards the beginning of the hearing, the panel asked him when his problems in Haiti began, and he answered, [translation] "XXXX XXXX, 2006.4" Then, when the panel asked him what happened that day, the appellant answered that the RDNP supporters came looking for him and so he went into hiding.5 The panel asked him how he knew those people were looking for him, and he stated that his friend, XXXX XXXX, had called to warn him. The appellant also testified that it was XXXX XXXX who advised him to leave the country, which he did in XXXX 2006. The appellant did not mention that the RDNP supporters were looking for him at the home of his child's mother, as indicated in his BOC Form. It was only after the panel asked him why he had waited so long to leave the country that the appellant answered, [translation] "Why I waited all that time was that I wanted to see, you know...it was when they went looking for me at the home of my child's mother, and it was at that point that I had to leave the country of Haiti.6" The panel then asked him when the supporters went to the home of his child's mother and the appellant answered, [translation] "XXXX XXXX, 2006.7" The panel reminded him that he had already left the country before XXXX XXXX, 2006, and therefore his answer did not make sense. When asked about this inconsistency, the appellant answered that the visit had actually taken place on XXXX XXXX, 2005.8 The appellant subsequently confirmed that date numerous times throughout the rest of the hearing. In my opinion, this greatly undermines the appellant's credibility, given that he testified that his problems began in XXXX 2006 and that, in XXXX 2005, Mr. Préval had not yet been elected as president. Therefore, the timeline of events as presented in his BOC Form does not make sense if the RDNP supporters were already looking for him in XXXX 2005. In my opinion, the appellant clearly changed his answer from XXXX XXXX, 2006, to XXXX XXXX, 2005, simply because the panel pointed out that he had already left the country in XXXX 2006. I conclude that the RPD did not err in finding that this changing testimony undermines the credibility of his allegations. The RPD did not err in noting the contradiction between the IMM 5669 form and the appellant's testimony, as well as the documentary evidence, regarding his political affiliation [11] The appellant recognizes that he made an error on his IMM 5669 form when he indicated that he was a member of the Lavalas party from 2000 to 2017. However, he maintains that the RPD should have simply relied on the documentary evidence he provided-a copy of his membership card showing that he had been a member since 2002. [12] I agree with the RPD's finding that this inconsistency undermines the appellant's credibility. It is not just a date error; it is also that the appellant, according to his testimony, was a member of the Lavalas party from 2002 to 2004, that his role was to glue emblems, that he was then a member of the RDNP party from 2004 to 2005 and, finally, that he was a member of the Front for Hope party from 2005 until he left Haiti in 2006.9 Therefore, the fact that he indicated on his IMM 5669 form that he was solely a [translation] "XXXX" for the Lavalas party from 2000 to 2017 and that he did not belong to any other party conflicts significantly with his allegations of risk. The RPD did not err in including this contradiction in its credibility analysis. [13] Furthermore, the RPD did not question the authenticity of the membership card, as suggested by the appellant. It is possible that the appellant had been a member of the Lavalas party, but that does not help to support his allegations, given that it was not until he left the RDNP party (not the Lavalas party) that he began being persecuted according to his account and testimony. [14] With respect to his role in the party, the appellant submits that he told the panel that he [translation] "talked to the public" and that he may have interpreted that as being the role of a mobilizer.10 I disagree. Once again, the appellant's testimony changed only after the panel confronted him with what he wrote on his forms. The questions and answers are as follows: [Translation] Panel: What did you do for Lavalas? Claimant: I XXXX XXXX. Panel: Were you paid for doing that? Claimant: That wasn't something you were paid for. I did it so there could be a change in the country. Panel: You did that from 2002 to 2004? Claimant: Yes. Panel: Did you do anything other than XXXX XXXX? Claimant: No, I didn't do anything other than XXXX XXXX. Panel: And in 2004, what did you do? Claimant: In 2004, I left the Lavalas party. I joined the RDNP party. Panel: In your IMM 5669 form, on page 2...Schedule A, you indicated that, from 2000 to XXXX 2017, you were a member of Lavalas, a "XXXX," activity type "XXXX," so that contradicts what you just told me. Would you like to see the form, Mr....Can you explain that? Claimant: What we did was just XXXX XXXX and talk to the public. Panel: What did you talk to the public about? Claimant: So they would vote for the president so there would be a change in the country. Panel: You did things other than XXXX XXXX. Claimant: Normally, I didn't do anything else, just talk to people.11 [15] This excerpt demonstrates that the appellant changed his testimony to match what is written in his IMM 5669 form when the panel pointed out the discrepancy to him, despite the fact that he admitted that the dates on the form were wrong. I am of the opinion that this contradiction in dates and roles and the fact that the form does not mention the other political parties undermine the appellant's credibility and that the RPD did not err when it considered this in its analysis. The RPD did not err in noting a contradiction between the allegations made to the American authorities and the allegations made in his Canadian claim for refugee protection [16] The appellant submits that he explained to the panel that the date on which the supporters came looking for him indicated in the American decision (XXXX 2004) was incorrect. The appellant maintains that this was a plausible explanation.12 I disagree. [17] To begin with, it is not just a matter of dates. The American decision reads as follows: "...the respondent testified that on XXXX XXXX, 2004, anti-Lavalas supporters looked for him at his home, and that his brother, girlfriend, and one child were at home with him at the time (Tr. at 32-33). However, the addendum states that, during the XXXX 2004 incident, he was at home with his girlfriend and their two children, one of whom he had testified was not born until XXXX XXXX, 2004.13" Therefore, it is clear that the discrepancies in the stories are significant. In the version provided to American authorities, the anti-Lavalas supporters were the ones looking for him in 2004-before the 2005 election, and in the version provided to Canadian authorities, the RDNP supporters were the ones looking for him after Mr. Préval was elected (in 2006). The appellant did not explain the reason for the discrepancy, apart from stating that the date in the American decision was wrong. The RPD did not err in its analysis in this regard. The RPD did not err in giving more weight to the objective data than to the appellant's testimony [18] The appellant maintains that the panel erred when it gave more weight to the Minister's information that he left the United States twice (in 2011 and 2013) than to the appellant's testimony that he did not leave the country between 2006 and 2017. The biometric data obtained by the Minister from American authorities show that the appellant left the country twice, once in XXXX 2011 and once in XXXX 2013. The appellant denies leaving the United States at all after entering the country in 2006 and before coming to Canada in 2017. When asked to explain how this was possible, he simply answered, [translation] "it wasn't me; I didn't travel.14" Although I agree with the appellant that it was speculative on the Minister's part to suggest that the appellant returned to Haiti in 2011 and in 2013, as they did not have the information regarding his destinations, the RPD did not comment on that possibility in its decision. Like the RPD, I am relying on the concrete information provided by the Minister, and, like the RPD, I am of the opinion that the appellant was not credible when he denied leaving the country and that this undermines the overall credibility of his allegations. The RPD did not err in this regard. CONCLUSION [19] In conclusion, like the RPD, I am of the opinion that the appellant's credibility was seriously undermined by the inconsistencies, omissions and contradictions between his testimony, the documentary evidence, his BOC Form and other forms and the information obtained by the Minister. Consequently, I do not find the appellant's account to be credible. For these reasons, I conclude that the appellant did not establish that there is a serious possibility that he would be persecuted on a Convention ground or that, on a balance of probabilities, he would be personally subjected to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment should he return to Haiti. DECISION [20] Pursuant to subsection 111(1)(a) of the Immigration and Refugee Protection Act, the RAD dismisses the appeal and confirms the determination of the RPD that the appellant is neither a refugee nor a person in need of protection. 'Jillan Sadek' Jillan Sadek July 17, 2019 Date IRB translation Original language: French 1 M.C.I. v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93, para 103. 2 RPD (Refugee Protection Division)-1, RPD record, Basis of Claim Form (BOC Form), p. 11. (BOC Form, p. 11 of the RPD record). 3 Appellant's memorandum, paragraph 9, appellant's record, p. 5. 4 At approximately minute 0:43 of the recording of November 14, 2018. 5 At approximately minute 0:44 of the recording of November 14, 2018. 6 At approximately minute 0:51 of the recording of November 14, 2018. 7 At approximately minute 0:53 of the recording of November 14, 2018. 8 At approximately minute 0:53 of the recording of November 14, 2018. 9 At approximately minutes 0:35 to 0:37 of the recording of November 14, 2018. 10 Appellant's memorandum, paragraph 14, appellant's record, p. 7. 11 At approximately minutes 1:08 to 1:12 of the recording of November 14, 2018. 12 Appellant's memorandum, paragraph 15, appellant's record, p. 8. 13 RPD-1, RPD record, Order U.S. Department of Justice Decision of the Board of Immigration Appeals, p. 84. 14 At approximately minute 0:40 of the recording of November 14, 2018 (0:40). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------