MB9-25330

RAD File No. / No de dossier de la SAR : MB9-25330 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 September 4, 2020 Date de la décision Panel Me Kristine Plouffe-Malette Tribunal Counsel for the person who is the subject of the appeal Me Murhula Jugauce Mweze 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 (the appellant), a citizen of Haiti, is appealing the decision of the Refugee Protection Division (RPD) dated October 6, 2019, rejecting his claim for refugee protection on the grounds that he did not provide credible testimony. [2] According to the account written on a computer that is attached to the Basis of Claim Form (BOC Form), the appellant's brother, XXXX XXXX, managed some land owned by a XXXX in Port-au-Prince from 2010 to 2016. The XXXX had agreed to let some of those affected by the earthquake settle there. In 2016, the XXXX asked XXXX XXXX to have them vacate land. Some residents, who the appellant considers criminals, refused to accept this decision and took revenge by setting the residence of the appellant's brother on fire. As a result, the appellant decided to offer his brother a place to stay at his own home in Port-au-Prince and he tried to file a complaint with the police, but no police officers were present to take his complaint. [3] On XXXX XXXX XXXX 2016, the appellant's brother went to the Dominican Republic to hide because the criminals had continued looking for him. [4] The criminals found out that the appellant had taken steps to ensure his brother's safety, which is why he claims they started pursuing and persecuting him. [5] On XXXX XXXX XXXX 2016, the criminals showed up at his home heavily armed. They fired shots at the home, injuring a tenant who was on the ground floor. The appellant and his family were upstairs and were not injured. Some neighbours managed to scare off the criminals by yelling and screaming. The next day, XXXX XXXX XXXX 2016, the appellant went to the police to file a complaint. [6] On XXXX XXXX XXXX 2016, the appellant left the country for the United States on a visa. The appellant returned to Haiti on XXXX XXXX XXXX 2016, at the end of the XXXX-month period for which he was entitled to stay in the United States. Hearing the news that he was back in the country, the criminals pursued him from Port-au-Prince to XXXX to try to kill him. [7] The appellant left Haiti for good on XXXX XXXX XXXX 2016, and travelled to the United States. With his visa having expired on XXXX XXXX XXXX 2017, and fearing reprisals from President Trump, the appellant crossed the Canadian border on XXXX XXXX XXXX 2017, to claim refugee protection. [8] The RPD rejected the appellant's refugee protection claim because of significant omissions and contradictions that were not satisfactorily explained and seriously undermined his credibility. The RPD was not satisfied with the explanation given by the appellant to justify the connection established between him and his brother's activities. In addition, he did not satisfactorily explain the three different versions that exist between his handwritten account, the account attached to his BOC Form and the account in the police report regarding the events of XXXX XXXXandXXXX XXXX XXXX 2016. The appellant was unable to reasonably explain why the police report he presented is dated XXXX XXXX XXXX 2016. The RPD concluded that the appellant's behaviour-returning to Haiti and not applying for asylum in the United States-was not that of a person who feared for his life. Lastly, although he presented a report issued by a justice of the peace concerning a burglary that occurred at his home in 2018, the RPD was of the opinion that the appellant did not face a risk if he were to return to his country. Little probative value was given to this document, prepared at the request of the appellant's spouse, because there is a significant discrepancy as to the person living there. The RPD concluded that, even if it had accepted that the appellant's home was burglarized, there is no evidence to establish a connection between this incident and the criminals who are allegedly looking for the appellant. [9] On appeal, the appellant submits that the RPD did not properly assess his credibility, that it dismissed, without reason, the explanations provided for the omissions and inconsistencies in his testimony, and it did not consider the objective evidence regarding land disputes. These are the determinative issues on appeal. [10] For the reasons set out below, the appeal is dismissed and the determination of the RPD is confirmed. The appellant did not provide credible and trustworthy testimony. SCOPE OF THE APPEAL [11] In accordance with the teachings in Huruglica,1 the RAD carried out an independent review of the evidence in support of the appeal, including listening to the hearing in this case, and, since the RPD did not enjoy a meaningful advantage on an issue of credibility, it applied the correctness standard. ANALYSIS [12] The appellant submits that the RPD was required to consider the objective evidence regarding land disputes. He cites the RPD decision allegedly accepting this characterization of the alleged dispute between the appellant and the criminals. However, this reference does not appear in the RPD's decision. In addition, in light of the facts, there is no need to characterize it as a land dispute as no land ownership was at stake. This argument is rejected. [13] The RAD concludes that the RPD did not err in making a negative credibility finding precisely because of the three reported versions of the alleged incident of XXXX XXXX XXXX 2016. The record contains a handwritten version of the incident in his BOC Form, a version written on a computer that is attached to that same form and a third version in the police report.2 The discrepancy between these versions involves two determinative facts, namely, in the first version, the criminals did not attack the appellant and his family, but were driven away by the neighbours. In the second version, the criminals fired shots at the appellant's home, injuring a tenant, and fled as a result of the neighbours' screams. This version is echoed in the police report, where it is however mentioned that the criminals fled upon hearing shots. When asked to explain these three versions, the appellant blamed it on the interpretation, then on the legal aid lawyer and, in the end, apologized. [14] The police report, submitted in support of the appellant's refugee protection claim, that presents a third version of the events cannot be given any probative value because of the date on it, namely, XXXX XXXX XXXX 2016. The appellant tried to explain this error by blaming the police officer who completed the form and explaining that he was asked to pay $XXXX to have it changed to XXXX XXXX XXXX 2016, the date on which he actually went to the police station. [15] None of the preceding explanations are satisfactory. Like the RAD, the RPD was correct to expect the appellant to present credible, consistent and trustworthy evidence regarding the only incident specifically pertaining to the appellant and on which his entire refugee protection claim is based. [16] In his memorandum, the appellant quoted at length a text written by France Houle, Professor and Dean of the Faculty of Law at the University of Montréal, as a reminder that there is a presumption of truthfulness regarding a refugee protection claimant's testimony and that contradictions or omissions noted must be real, significant or serious.3 Although the text was published in 2003, its key findings remain valid and were respected by the RPD in this case. The panel systematically offered the appellant the opportunity to explain the contradictions noted, which he did not satisfactorily do. [17] Considering the reasons above, the RAD does not believe that the appellant and his family members were attacked by criminals on XXXX XXXX XXXX 2016. In the absence of such an attack, there would be no reason for the appellant to be pursued from Port-au-Prince to XXXX and, consequently, there would be no incident to justify the appellant's refugee protection claim. [18] What is more, there is no prospective risk if the appellant were to return to Haiti. When asked to explain what would happen if he were to return to Haiti, the appellant stated that he would still be threatened by the same criminals who, furthermore, he has trouble identifying. He also confirmed that they had not been displaced from the XXXX land and that it was now a matter for the police. When asked what possible motives the criminals would have to justify attacking him again if they are still on the land, the appellant stated that the criminals would always think that he wanted to displace them. When confronted with the previous statement that it was his brother who had that job and who tried to displace the criminals, the appellant submitted that whether his brother or him, it was all the same to the criminals. In short, the appellant is speculating on a potential risk that does not in fact exist. In that respect, he confirmed that none of his family members, including his older brother who still lives in the same house where the attack occurred on XXXX XXXX XXXX 2016, have been bothered since he left. With regard to the burglary that allegedly occurred in XXXX 2018, while it is possible that it occurred, there is no evidence linking this incident to the one in XXXX 2016. Ultimately, the RAD concludes that there is no prospective risk if the appellant were to return to Haiti. [19] The RPD's decision is, in all respects, consistent with the evidence submitted and there is no reason for the RAD to intervene on appeal. The appellant has not shown, on a balance of probabilities, that he would face a serious possibility of persecution or that he would be subjected personally to a danger of torture, or to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to Haiti. CONCLUSION [20] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the appeal is dismissed and the determination of the RPD that the appellant is not a Convention refugee or a person in need of protection within the meaning of subsection 97(1) of the IRPA is confirmed. (signed) Kristine Plouffe-Malette Me Kristine Plouffe-Malette September 4, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 SPR-1, Refugee Protection Division (RPD) record, Basis of Claim Form, at pp. 12 and 21; SPR-1, RPD record, police report, at p. 76. 3 France Houle, L'évaluation de la crédibilité des témoignages dans un contexte décisionnel multiculturel : étude sur le traitement symptomatique de certaines preuves par la Section de protection des réfugiés [assessing the credibility of testimony in a multicultural determination context: a study of the symptomatic processing of some evidence by the Refugee Protection Division] in Patrick Molinari (dir.), Dialogues About Justice: The Public, Legislators and the Media, Montréal, Éditions Thémis, 2003, pp. 313-405. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-25330 RAD.25.02 (January 2020) Disponible en français 2 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