MB8-23753

RAD File No. / No de Dossier de la SAR : MB8-23753 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 November 6, 2019 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal Susan Ramirez 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] XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated September 28, 2018, rejecting his refugee protection claim on grounds of credibility. [2] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal, set aside the determination of the RPD, hold a new oral hearing before the RAD or RPD, or determine that he is a Convention refugee and a person in need of protection. [3] The appellant submitted no new evidence. [4] The determinative issue in this case, like for the RPD, is the appellant's credibility. DETERMINATION [5] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [6] After participating in an anti-government demonstration on November 7, 2013, for being denied a salary representative of his duties, he attended a preparatory meeting on April 25, 2014, to plan another anti-government demonstration. He alleges that he was kidnapped by three masked men on May 11, 2014, and tortured. [7] On XXXX XXXX XXXX 2014, he left for the United States and applied for asylum there, but received no response. He lived there until XXXX XXXX XXXX 2017. Fearful of President Trump's immigration policies, he decided to illegally cross the Canadian border and claimed protection in Canada. [8] The RPD rejected his claim, considering his testimony to be rambling and evasive, as he constantly changed it throughout the hearing, which resulted in contradictions and omissions that undermined his credibility and his account of persecution and risks to his life in Haiti. STANDARD OF REVIEW [9] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.1 That said, the RAD's role is to determine whether, as alleged by the appellant, the RPD has indeed erred. ANALYSIS Appellant's arguments [10] In his memorandum, the appellant criticizes the RPD for rendering a decision based on erroneous findings of fact made in a capricious manner with regard to the evidence and without considering the elements before it, by concluding: That the appellant was not credible? That the documents submitted into evidence had no probative value?2 [11] The appellant is particularly critical of the RPD's conclusion that he lacked credibility because he failed to satisfactorily address the RPD's concerns about his allegations of persecution. He alleges that there were no major contradictions in his testimony. [12] He is also asking that no negative inference be drawn from his failure to wait for a response to his asylum claim in the United States when he decided to cross the Canadian border to claim protection in Canada. In that respect, he claims that the RPD erred in stating in paragraph 22 of its reasons that President Trump's statements did not warrant abandonment of the asylum claim in the United States.3 [13] The appellant also alleges that the RPD erred in its evaluation of the prospective risk he would face if he were to return to Haiti as well as the risks associated with [translation] "his status as a teacher and demands for a higher salary as a demonstrator against the government in power."4 [14] Lastly, under the heading [translation] "breach of procedural fairness," the appellant alleges that the RPD erred in not assigning any probative value to the documents he submitted.5 [15] The appellant's memorandum was drafted in general terms. The appellant categorizes all paragraphs in the RPD decision (with the exception of paragraph 22) as areas where it erred, without any further relevant and detailed explanation as to the RPD's errors.6 Credibility [16] After reviewing the appellant's entire record, listening to the recording of the RPD hearing and considering the appellant's arguments, the RAD is of the opinion that the RPD did not err in its conclusions regarding the appellant's credibility. [17] The RPD had many concerns regarding the appellant's allegations in determining the merits of his fear of persecution, conducted its questioning properly and drew numerous negative conclusions as to his credibility due to major inconsistencies, contradictions and omissions, confusing testimony and evasive answers. The RAD noted that the appellant often answered in a roundabout manner, meaning that the RPD had to ask the questions again and never received precise and convincing answers. [18] Even counsel for the appellant had to intervene during the RPD hearing when the appellant's answers were evasive in order to repeat the questions, telling his client [translation] "you love to talk a lot...the member was clear,"7 or in his submissions at the end of the hearing, when he acknowledged that the appellant [translation] "talks on and on and does not necessarily answer the question asked; it's in his nature."8 [19] The RPD noted the appellant's major omissions and confronted him by asking him about them. The appellant answered that he had not thought about that when filling out his Basis of Claim (BOC) Form and that if he were to write down his entire story, it would be too long. A reading of the appellant's account (4 pages) reveals that he spent nearly half of it talking about pig smuggling. The RAD supports the RPD's finding that it was [translation] "reasonable for all the important and relevant information regarding his story of persecution and risks to be mentioned at the outset, in response to the questions in his BOC Form."9 [20] The RPD's conclusions as to credibility pertained to important aspects of the appellant's refugee protection claim and were based on evidence. The appellant failed to provide satisfactory answers likely to corroborate his allegations of fear. [21] The RAD is of the opinion that the RPD's conclusions were extensive and detailed, and accurately reflected the state of the appellant's testimony. The RPD was right to question his credibility. Failure to wait for a response to his application for asylum in the United States [22] The RPD concluded that the appellant [translation] "abandoned an asylum claim that he had filed in the United States of America in order to improperly come to Canada to file the present refugee protection claim."10 [23] Confronted about this issue, the appellant, who stayed in the United States for more than three years and who held a card that allowed him to work legally in that country, was not persuasive in claiming that the process was long or that it was because of President Trump's statements. He also acknowledged that he did not check the status of his claim or consult a lawyer or counsel or the authorities concerned. [24] These explanations are far from sufficient in the eyes of the RAD. The appellant had no pressing obligation to leave the United States because he held a card issued by the US authorities allowing him to work in the United States, pending a response to his asylum claim. He also had ample time to conduct the necessary research to enquire about the status of his asylum claim in the United States. [25] The RAD finds that the fact that the appellant stayed more than three years in the United States, a signatory to the Convention, and filed an asylum claim there without following up on its status is inconsistent with the actions of someone who is persecuted and who fears for his life in his country of origin. The RPD is correct in its conclusion on this point. Prospective risk [26] In paragraphs 17 to 40 of his memorandum, the appellant states that [translation] "the panel erred in stating that the appellant faced no prospective risk if he were to return to Haiti."11 [27] Aside from general grievances without specific arguments, that is, a minimization of the appellant's fear, or that the hearing is an opportunity to add omissions to the BOC Form, the wave of arrivals and the government's administrative disorganization, the RPD's reasoning is completely erroneous and contrary to the Convention, and to think like the RPD did is akin to accepting new instructions from President Trump, a violation of Canada's mandate to receive refugee protection claimants. [28] The appellant submits that he [translation] "faces risks because of his status as a teacher due to his salary demands as a demonstrator against the government in power" and that the RPD "erred in stating that he faced no prospective risk."12 [29] The RAD cannot support this argument. For a refugee protection claim to be admitted, the appellant must be personally targeted. The RPD did not believe his testimony regarding the alleged persecution, threats and risks,13 and the documents filed to corroborate his account are insufficient to lend credibility to a testimony that essentially is not credible.14 [30] After considering the appellant's arguments and examining all of the evidence, the RAD is of the opinion that it has not been established that the RPD's conclusions as to the assessment of prospective risk are incorrect. The Federal Court clearly stated that, although documentary evidence shows acts of violence committed [in a country], it is reasonable to find that a claimant is not at risk, considering that according to the evidence, his profile does not match that of the circumstances and the persecuted persons.15 [31] In the circumstances, the RAD considers that the appellant failed to meet his burden of proof and that the RPD properly assessed the risks inherent to a return to Haiti and concluded that the evidence submitted by the appellant was insufficient to establish the appellant's current or prospective risk relative to the Haitian government. The only risk he would be exposed to is that faced by the general population in that country. Breach of procedural fairness [32] In paragraphs 41 to 45 of his memorandum under the heading [translation] "breach of procedural fairness," the appellant submits that the RPD erred by assigning no probative value to the 17 documents submitted, whose authenticity was not challenged. [33] With due respect, the RAD cannot support these arguments. When it comes to procedural fairness, the question is whether the principles of natural justice were respected taking into account the specific circumstances of the record.16 [34] The purpose of procedural fairness is to ensure that refugee protection claimants understand the proceedings, have a reasonable opportunity to tender any evidence that supports their claim, and are given a chance to persuade the RPD that their claim is well-founded.17 [35] In this case, the RPD considered all of the evidence, and the appellant understood the proceedings, submitted evidence in support of his claim and had the chance to persuade the RPD that his claim was well-founded. The RPD therefore respected this principle of procedural fairness. [36] The RAD considers that the RPD was empathetic and ensured that the appellant felt comfortable, calmed down and was able to testify. The appellant's nervousness and distress cannot explain the many serious and significant problems with credibility raised during the hearing. The truthfulness of allegations is rebuttable where the evidence is inconsistent with the testimony or where the RPD is unsatisfied with the explanations for those contradictions, inconsistencies and omissions.18 [37] The 17 documents submitted are the BOC Form, the work permit card for the United States, a membership card for a political party, a birth certificate, letters attesting to work in national education and from a school, copies of bank cheques, a photo of a classroom, a statement to the national police, from the appellant's nephew, and a teaching work certificate. [38] In examining these documents, the RPD concluded that they had no probative value, as some deal with jealousy and accusations of pig smuggling, the party membership card is insufficient to show a serious possibility of persecution, the nephew's complaint and his letter are insufficient to prove the alleged event, and the documents relating to the claimant's duties offer no proof of the allegations of persecution. [39] The only document that relates to his allegation of being persecuted by the government is the complaint to the police,19 to which the RPD assigned no probative value after having questioned him at length about the facts contained in that document, which were undermined by a lot of contradictions and inconsistencies. Moreover, the RPD dedicated all of paragraph 18 to this in its reasons. [40] Given the finding that the appellant lacked credibility as to the essential elements of his refugee protection claim, the appellant failed to meet his burden of demonstrating that he would truly face a risk to his life if he had to return to Haiti. [41] The RAD considered the appellant's arguments that the RPD erred in failing to consider and properly analyze all of the evidence and the appellant's subjective fear. The RAD took these arguments into account in reaching its own final conclusion, fully considered and examined all of the factors in this case, and, lastly, took into account the alleged subjective fear. The RAD reaches the same conclusion, namely, that this appeal must be dismissed. CONCLUSION [42] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD that the appellant is neither a Convention refugee nor a person in need of protection. Mokhtar Lamani Mokhtar Lamani November 6, 2019 Date IRB translation Original language: French 1 Huruglica v. Canada (MCI), 2016 FCA 93. 2 Appellant's memorandum, part I (issues). 3 Ibid., paragraph 29. 4 Ibid., paragraph 35. 5 Ibid., paragraphs 41 to 44. 6 See 1(3)(g) of the Refugee Appeal Division Rules. 7 Recording of the hearing before the Refugee Protection Division (RPD), minutes 2:11:00. 8 Recording of the hearing before the RPD, minutes 3:17:00. 9 RPD Reasons and Decision, paragraph 21. 10 RPD Reasons and Decision, paragraph 22. 11 Appellants' memorandum, paragraph 40. 12 Appellants' memorandum, paragraphs 35 to 40. 13 RPD reasons, paragraph 23. 14 Ibid., paragraph 24. 15 Kipre v. Canada (MCI) 2017 FC 92. 16 Ching v. Canada (MCI) 2015 FC 725, paragraph 75. 17 Nemeth v. Canada (MCI) 2003 FCT 590, paragraph 10. 18 Lawani v. Canada (MCI) 2018 FC 924, paragraph 21. 19 RPD record, document 4 - Haitian national police statement (p. 16). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de Dossier de la SAR : MB8-23753 RAD.25.02 (April 4, 2019) Disponible en français 9 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