MB8-18980

RAD File No. / No de dossier de la SAR : MB8-18980 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 July 18, 2019 Date de la décision Panel Me Jolyane Lefebvre 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 OVERVIEW [1] The appellant, XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. The appellant is submitting that the RPD erred in finding that he was not credible and that it did not give sufficient consideration to the evidence before it. [2] Following a full and independent analysis of the evidence, including the recording of the hearing, I am of the opinion that the RPD rendered the correct decision. I conclude that the appellant did not establish the credibility of his allegations. [3] The Refugee Appeal Division (RAD) confirms the determination of the RPD. This appeal is dismissed. BACKGROUND [4] The appellant alleges that he left Haiti on XXXX XXXX, 2013, for Brazil. He feared the people in his village who were jealous of his uncle because he had a great deal of money. [5] The appellant left Brazil in XXXX 2016 for the United States. He arrived on or about XXXX XXXX, 2016. [6] The appellant alleges that on XXXX XXXX, 2017, his uncle was killed in Haiti by someone he knew, one of his uncle's colleagues. He also claims that his sister and father received death threats. [7] The appellant arrived in Canada on May 10, 2017. SCOPE OF THE APPEAL [8] The role of the RAD in an appeal against an RPD decision is defined by the Federal Court of Appeal in Huruglica. That said, to review the RPD decision, I must independently determine whether the RPD's analysis was correct in terms of each of the errors of fact, law or mixed fact and law that were raised. MERITS OF THE APPEAL The Refugee Protection Division's findings [9] The RPD found that the determinative issue in this refugee protection claim is the appellant's credibility. It noted the following omissions, contradiction and inconsistency: * The appellant testified that he did not have time to obtain permanent residence in Brazil, but states in his Basis of Claim Form (BOC Form) that individuals who have residence in another country are targeted by criminals. * The appellant failed to indicate the name of the agent of persecution in his initial BOC Form. He added the individual's name the day of the hearing. * The appellant failed to submit proof of his uncle's death. * The appellant testified that his problems began after the XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2014, when he was in Brazil, but states in his BOC Form that he was forced to leave his country because people were jealous of his family. [10] It determined that the appellant was not a Convention refugee as [translation] "his fear of persecution is not by reason of one of the five Convention grounds"1 because he alleges that he fears criminals as a result of his family's financial situation. It conducted its analysis under section 97 of the Immigration and Refugee Protection Act (IRPA). The appellant's submissions [11] The appellant submits that the RPD erred in the assessment of his credibility because it exaggerated in finding that there was a major contradiction regarding his status in Brazil. He submits that the RPD showed a lack of rigour, was very selective and [translation] "focused solely on the details instead of relying on all of the evidence."2 DECISION ON WHETHER TO HOLD AN ORAL HEARING [12] Counsel for the appellant requested that an oral hearing be held under subsection 110(6) of the IRPA. [13] Pursuant to subsection 110(6) of the IRPA, the RAD may hold an oral hearing if, in its opinion, the new evidence presented on appeal is admissible and meets the following three criteria: (1) it raises a serious issue with respect to the credibility of the person; (2) it is central to the decision with respect to the refugee protection claim; and (3) if accepted, it would justify allowing or rejecting the refugee protection claim. [14] In this case, since no new evidence has been submitted on the record, I conclude that an oral hearing cannot be held. ANALYSIS - Did the Refugee Protection Division err in assessing the appellant's credibility? Contradiction in the appellant's testimony regarding his status in Brazil [15] The appellant alleges that he obtained a document to work in Brazil, but that he did not have time to obtain permanent residence. He claims that he left Brazil before completing the steps to obtain permanent residence. When confronted with the fact that his name is on the list of people eligible for permanent residence and that he made statements in his BOC Form suggesting that he had permanent residence, he replied that he had not understood the question and that his cousin had written his account for him. [16] The RPD found that this was a major contradiction and that it raised doubts as to the appellant's status. In addition, it states [translation] "with no evidence that the claimant obtained permanent residence in Brazil, the panel concludes that he did not have it, but this contradiction...nevertheless undermines his credibility."3 [17] The appellant submits that the RPD's finding is unreasonable and that it did not show understanding when he stated that his cousin had helped him complete his forms. In addition, he adds that [translation] "talking about residence does not necessarily mean that it is permanent"4 and that all Haitians in Brazil, whether permanent or temporary residents, face discrimination in Brazil. He also claims that he does not have permanent residence because the Minister did not intervene. [18] The RPD did not err in finding that this contradiction undermined the appellant's credibility. In my opinion, the fact that the appellant alleges in his BOC Form that [translation] "since someone has had residence in another country, he has been targeted by criminals and gunmen" undermines his credibility, considering that he is referring to himself using the third person singular. With respect to the argument in his memorandum regarding the fact that he had not specified if he was talking about permanent or temporary residence, I cannot accept it. When confronted with this contradiction before the RPD, the appellant replied that he had not understood the question and that his cousin had written his account for him. At no time before the RPD did he state that he may have been talking about temporary residence. [19] With regard to the fact that he alleges he does not have permanent residence because the Minister did not intervene in the case, I am of the opinion that this is not an argument to establish that the RPD erred. The fact that the Minister does not intervene in a case cannot be the basis for automatically making such a finding. Agent of persecution omitted from the Basis of Claim Form [20] At the hearing, the appellant testified that he feared an individual named "R.C." However, this information was not included in his original BOC Form. When confronted with this omission, the appellant replied that he had mentioned it at the start of the hearing when he submitted a written amendment, in which he added the name of the agent of persecution. [21] The RPD concluded that [translation] "the fact that the name of the individual the claimant fears does not appear in the BOC Form that he submitted as part of his refugee protection claim undermines his credibility."5 It added that this omission was not reasonably explained, considering that the appellant is educated. [22] The appellant submits that although he was late in providing the agent's name, this addition was made at the hearing. He submits that the RPD did not consider his explanation that his cousin had helped him complete his BOC Form and that the RPD should not make a finding of lack of credibility because the rules provide that claimants may amend or add information before their hearing. [23] I am of the opinion that the RPD did not err. In my opinion, the fact that the appellant explained this addition the morning of the hearing by the fact that his cousin had helped him complete his BOC Form undermines his credibility. Question 2(a) of the BOC Form is clear and asks claimants to explain in detail "who do you think caused the harm or mistreatment or threats." Furthermore, the appellant declares at the end of the document that the information he provided was complete, true and correct and, as mentioned by the RPD, he studied in a French-language school for nearly eight years. There is no reason to believe that the appellant did not understand the question on the BOC Form. In my opinion, the fact that he omitted the name of the agent of persecution when completing his BOC Form undermines his credibility. No proof of death [24] The appellant alleges that his uncle was killed by "R.C." and that this man wants to kill him too. When asked whether he had proof of his uncle's death, the appellant replied that he had submitted into evidence a copy of the complaint his sister had made to the police. Confronted with the fact that the complaint is not dated, the appellant stated that the other documents, such as the evidence pertaining to his uncle's company, were in the possession of "R.C." and that he had provided proof of death. [25] The RPD concluded that the death of the appellant's uncle was a central element of the refugee protection claim and it gave little weight to the complaint because it was not dated. It found that the lack of evidence regarding this death undermined the appellant's credibility. [26] The appellant submits that he was not in Haiti at the time of the murder and that it is impossible to obtain a document attesting to his uncle's death. As for the complaint, he acknowledges that it is not dated, but attributes that to the fact [translation] "that there is a flagrant lack of police training."6 He refers to tabs of the National Documentation Package on Haiti, according to which the Haitian police lack resources and that there is a breakdown in Haiti's justice system. [27] I am of the opinion that the RPD rendered the correct decision. The appellant's entire claim for refugee protection is based on the fact that his uncle was killed and he fears his killer. Yet, he provided no corroborating evidence attesting to this event. Given how important establishing his uncle's death is to the appellant's refugee protection claim, I am of the opinion that it is reasonable to expect the appellant to take steps to obtain his uncle's death certificate or any other evidence relating to this event, even though he was outside the country at the time of the murder. In addition, the evidence shows that the appellant still has family in Haiti. [28] As for the complaint to the police, with all due respect to the appellant, this is not proof of death. In my opinion, the fact that that the appellant's sister claimed to the police that her uncle died on XXXX XXXX, 2017, does not prove that he is dead. With regard to the argument that the police lack training and resources and that there is a breakdown in the country's justice system, this does not explain the failure to indicate the date on the document. That said, I agree with the RPD in giving little probative value to this document. The date on which the problems began [29] The appellant testified that his problems began around XXXX XXXX XXXX 2014 after the XXXX XXXX, when he was in Brazil. However, it appears from his BOC Form that he stated that he was forced to leave his country because people were jealous of his family. [30] The RPD found that although it did not confront the appellant about this, given that it is an apparent inconsistency, this contradiction undermines the appellant's credibility with respect to the date on which his problems began. [31] The appellant does not address this finding in his memorandum. [32] After analyzing all the evidence, I agree with the RPD. The fact that the appellant claims that his problems started in 2014 when he was in Brazil, while he states in his BOC Form that he was [translation] "forced" to leave his country because his neighbourhood was jealous of his family, undermines his credibility. [33] When taken as a whole, these reasons lead me to conclude that the appellant failed to establish that the RPD erred. CONCLUSION [34] For these reasons, the RAD confirms the determination of the RPD and determines that XXXX XXXX XXXX is not a "refugee" within the meaning of section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [35] The appeal is dismissed. (signed) Jolyane Lefebvre Me Jolyane Lefebvre July 18, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) decision, paragraph 8. 2 Appellant's memorandum, page 3, section 2. 3 RPD decision, paragraph 12. 4 Appellant's memorandum, page 4. 5 RPD decision, paragraph 14. 6 Appellant's memorandum, page 5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-18980 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français