MB9-11233

RAD File No. / No de dossier de la SAR : MB9-11233 MB9-11234 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 9, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal François Jean Denis Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du (de la) ministre REASONS FOR DECISION OVERVIEW [1] This appeal was filed by XXXX XXXX XXXX and his minor son XXXX XXXX XXXX, citizens of Haiti, against a decision rendered by the Refugee Protection Division (RPD) on April 23, 2019, rejecting their refugee protection claim. [2] The Minister's representative intervened before the first panel, submitting documents related to the appellants' resident status in the United States. The appellants submitted the following account. [3] The principal appellant claims that as a practising Catholic, he vigorously fought again a [translation] "spiritually demonic" voodoo sect in Haiti that has been growing since the arrival of former president Jean Bertrand Aristide. He claims that he cannot return to Haiti, as he was [translation] "condemned by a sect." According to him, in late 2006, a member of his family, who was a member of the Lavalas party, teamed up with criminals to get rid of him. He allegedly went into hiding in early 2007, but claims that his [translation] "enemies were attacking [him] on other fronts." On XXXX XXXX XXXX 2014, he was recognized and followed by a guest at a private party. Criminals broke into the building, but he managed to escape. He claims that he then hid until he left for the United States on XXXX XXXX XXXX 2017 (2007!). He allegedly had an American visa for two years, but missed an appointment which led to the process being cancelled. According to the IMM-5669 form, the appellants arrived in Canada in XXXX 2017. [4] The RPD rejected the appellants' refugee protection claims because of a lack of credibility. As for the appellants, they are asking that the appeal be allowed, that the RPD's determination be set aside and that its own determination be substituted or that the matter be referred to a differently constituted panel for a de novo hearing. [5] On appeal, the appellants are submitting the following arguments: 1. The contradictions noted by the RPD regarding the dates have been explained: they are [translation] "errors made by his counsel's secretary." 2. The principal appellant suffers from XXXX disease, which explains why he was unable to provide details concerning certain incidents, but his testimony did not contain any contradictions undermining his credibility. 3. As Christians, the appellants are [translation] "subjected to danger in Haiti because of voodoo practitioners who want to harm them." [6] They conclude that the RPD did not conduct an analysis based on all the evidence and that it rendered a decision lacking in justification and intelligibility. [7] The appellants have not asked to submit any new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)1 and did not request that an oral hearing be held under subsection 110(6) of the IRPA. [8] Like the tribunal of first instance, the Refugee Appeal Division (RAD) appointed XXXX XXXX XXXX as designated representative for his minor son XXXX XXXX XXXX. The son has no specific account; his claim is based on his father's account. He intervened on a few occasions to help his father, who sometimes has trouble speaking. DETERMINATION [9] Under paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination that XXXX XXXX XXXXand XXXX XXXX XXXX are not "Convention refugees" or "persons in need of protection" within the meaning of sections 96 and 97 of the IRPA. [10] The appeal is dismissed. SCOPE OF THE APPEAL [11] For questions of fact, of law and of mixed fact and law, the RAD must apply the correctness standard of review in accordance with Huruglica.2 [12] I have conducted my own independent analysis of all the evidence on the record, after listening carefully to the recording of the hearing, in order to form my own opinion concerning this refugee protection claim and to determine whether the RPD's decision is correct. ANALYSIS [13] Having reviewed all the testimonial and documentary evidence on the record, the RAD comes to the same conclusion as the RPD-that the appellants are not credible. [14] The appellants are of the opinion that the RPD failed to properly assess their credibility and that the impact on the decision is that the appellants would not be persecuted in their country. [15] The appellants' credibility is at the very heart of this case. [16] After listening to the recording of the hearing, it must be noted that the appellant's testimony was very laborious and sometimes vague. It must be mentioned that the appellant did not answer the questions directly, which means the member had to repeat them numerous times. [17] The first matter addressed in the memorandum is that the contradictions with respect to the dates have been explained. The RPD concluded that the appellants were not credible regarding the dates provided. It must be noted that the appellants had submitted their Basis of Claim Form (BOC Form), then heavily amended it a few days before the hearing, drastically changing the dates. The XXXX XXXX XXXX 2014, incident is pushed back in the timeline to 2007, the visa procedure for the United States was started in 2004 and they indicate they left for that country on XXXX XXXX, 2017, even though they actually left on XXXX XXXX XXXX 2007. All these dates cannot be explained by an error on the part of the counsel's secretary. We are of the opinion that the secretary had no interest or opinion concerning the appellants' account. She wrote down the information that they gave her and repeated their statements. [18] Furthermore, if the appellant's explanation regarding the secretary's errors is to be believed, it is ironic that the appellant only noticed the mistakes a few days before the hearing. It must be noted that both appellants speak French well, and could have mentioned the errors from the start or a few days after the information forms were submitted. These documents were submitted to the Board on November 17, 2017, and the hearing was held on March 21, 2019. It is unacceptable that two individuals would not notice the errors attributed to the secretary. It is too easy to try to blame these inaccuracies and mistakes on a third person. The only element heard several times during the hearing was that it was a typographical error. We must conclude that there are many typographical errors in this short text, and that they severely undermine the appellants' credibility. But there is more. [19] The second element addressed in the memorandum concerns the appellant's condition. The text indicates that he suffers from XXXX disease, which explains why he struggled to provide details on some incidents. According to the RAD's understanding of the testimony, his illness began in 2012, but the diagnosis came in 2014. The incidents described in the account took place in 2007. Despite the appellant's speech impairment, we understood his words well. The appellants submitted no medical document or relevant authority that could support the fact that a person suffering from this disease would be unable to provide details of events. On the contrary, the appellant gave details on certain incidents but the suggested dates and short explanations did not shed any light on the previous facts and actions. Consequently, this undermines their credibility. [20] The third element addressed in the memorandum concerns the fact that, as Christians in Haiti, they are exposed to voodoo practitioners who want to harm them. Here, the appellants are referring to a cousin, allegedly a follower of this animist sect, who wants to harm them. According to the testimony, the appellant is an Adventist and no longer a member of the Catholic church. He testified that he was baptized in 2011. When asked about his recent conversion, he stated that he had been more involved in this new religion. We also understood that this Adventist group is more aggressive towards voodoo practitioners, whom the appellant describes as criminals and people who [translation] "behave badly, do terrible things." The appellants' explanations suggest that the appellant is the one who confronted the voodoo practitioners, because they are increasingly present in the community. [21] But let us go back to the cousin who would harm him. He testified that she was friends with a member of the voodoo sect and that she allegedly was a member of the Lavalas party in 2006. He also testified that President Aristide and his government practised voodoo. When asked how this personally affects him, the appellant answered: [translation] "Because they hurt others, cause harm, do evil things and use criminals to achieve their goals." It must be noted that these explanations do not directly involve him. Moreover, the appellants left Haiti on XXXX XXXX. 2007, which means that many years have passed since then. When asked to provide details about their fear and the issues their cousin could cause, the appellant gave quite a vague answer: that corruption is on the rise in the country and that young, ill-intentioned people were going after everyone. He admitted that he has not been in contact with his cousin since 2007. We are of the opinion that his fear is based on the assumption that his cousin would come after him even after all these years. This undermines his credibility as, while in the United States and since coming to Canada, the appellants have never been in contact with this cousin or with other people in a way that could be considered evidence. [22] In addition, the appellants mention that the RPD did not conduct an analysis based on the entirety of the evidence. The presiding member of the tribunal of first instance questioned the appellant for several minutes about the steps he had taken with the American authorities regarding his status. We learned that after his marriage with an American citizen, he began proceedings to regularize his status. He stated that he had a resident status, but that he moved and inadvertently failed to continue the process to obtain permanent residence. He did not appear before the panel despite the fact that his American counsel tried to find him. Afterwards, without status in the United States and fearing that he would be removed, he moved to Canada. [23] We have provided this information to show that the appellant had the opportunity to regularize his status in the United States but that, because his own failings, did not pursue his case. If he truly has been afraid of his cousin and of the voodoo sect members since 2007, the lack of follow-up on his case in the United States is ironic. When asked to provide more details regarding the process in the United States after he lost his residence, as well as why he did not claim asylum in a democratic country like the United States, he stated that he was a resident for two years and did not claim asylum because he feared he would be deported. These explanations do not hold up-the RAD has no choice but to reject them. The appellant was helped in his immigration process by an American counsel, yet he chose not to pursue it and, more importantly, not to claim asylum in the United States, as the alleged incidents supporting his case took place in 2007. [24] Finally, we will not mention the fact that the appellant testified that he received numerous anonymous telephone calls. The appellant was asked what the callers said during these calls, and he answered that the callers were strangers. He claims that he received these calls in 2016, while he was in the United States. He was not able to specify the number of calls he received and simply stated that the number varied over time. When asked to explain this omission in the submitted account, which was recognized at the beginning of the hearing as true, complete and correct, the appellant claimed that he had mentioned it. Later, he claimed that he forgot to write it. This once again undermines the appellants' credibility. [25] Consequently, the RAD finds that the RPD did not err. [26] For the reasons expressed in this decision, the RAD finds that the RPD rendered the correct decision. REMEDY [27] For these reasons, the RAD confirms the determination of the RPD, that XXXX XXXX XXXXandXXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the Act. [28] The appeal is dismissed. (signed) Michel Jobin Michel Jobin March 9, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C., 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-11233 MB9-11234 RAD.25.02 (January 2020) Disponible en français 3 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