MB9-04157

RAD File No. / Nº de dossier de la SAR : MB9-04157 MB9-04158 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 January 21, 2020 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the persons who are the subject of the appeal Me Martine Cétoute Conseil des personnes 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 and his spouse, XXXX XXXX XXXX (the appellants), citizens of Haiti, are appealing against the decision of the Refugee Protection Division (RPD) dated February 4, 2019, that rejected their refugee protection claim based on a lack of credibility. [2] The appellants allege that the RPD erred in its conclusions. They are asking the Refugee Appeal Division (RAD) to allow their appeal, set aside the RPD determination and confirm their refugee status, or to refer the matter to a differently constituted RPD panel.1 [3] The appellants did not submit any new evidence and did not request an oral hearing before the RAD. DETERMINATION [4] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [5] According to their Basis of Claim Form (BOC Form), the appellants fear being persecuted after their son's friend was abducted. [6] They maintain that this friend managed to escape from his abductors without paying the $20,000 ransom. The abductors started looking for their son, accusing him of having helped his friend escape. [7] On June 3, 2017, they decided to hide at different friends' homes until XXXX XXXX XXXX 2017, when they boarded a flight for the United States. [8] After staying in the United States for one month and not claiming asylum, they decided to illegally cross the Canadian border on XXXX XXXX XXXX 2017, and claim protection in Canada. [9] The RPD rejected the refugee protection claims, concluding that the appellants did not establish that there is a serious possibility that they would be subjected to persecution on a Convention ground, or that, on a balance of probabilities, they would be personally subjected to a danger of torture or face a risk to their life or a risk of cruel and unusual treatment or punishment upon return to their country.2 [10] The appellants maintain that the issues are as follows:3 A) Did the RPD err in its assessment of the appellants' credibility? B) Did the RPD err in failing to objectively assess whether a person with the appellants' profile faced a prospective risk, despite its credibility findings? [11] The RAD finds that the determinative issues in this case are credibility and whether the RPD erred in failing to objectively assess whether the appellants' profile would subject them to a prospective risk. STANDARD OF REVIEW [12] 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.4 That said, the RAD's role is to determine whether, as argued by the appellants, the RPD did indeed err. [13] For this case, the RAD applied the correctness standard. ANALYSIS A. Did the RPD err in its assessment of the appellants' credibility? [14] The RPD found that the appellants are not credible on matters that are central to their protection claim.5 [15] The RPD concluded that the appellants' testimony was contradictory on matters central to their claim, that this testimony also contradicted facts described in the female appellant's account and that no satisfactory explanation was provided. Microscopic assessment [16] The appellants argue that the RPD conducted a microscopic assessment of the small omissions and contradictions in their statements.6 [17] In their opinion, the RPD's reasons are primarily concentrated on the appellants' shortcomings related to tangential elements of the case to which the RPD gave an unjustified significance.7 [18] As such, the appellants question the RPD's findings, particularly those related to: * The appellants' failure to list every address they lived at prior to fleeing to the United States in the IMM 5669 form.8 * The contradictions related to the dates and places they stayed while supposedly on the run.9 * The failure to mention the ransom amount in the testimony of the male appellant, Mr. XXXX.10 [19] The appellants conclude that the RPD assessed their credibility in an arbitrary manner and consider that it did not respect certain principles that apply when assessing credibility, as determined in Mohacsi,11 a Federal Court decision.12 [20] The RAD cannot agree with these arguments. [21] In fact, the RAD finds that the RPD is entitled to assess and weigh the appellants' oral and written testimony as well as the evidence they submitted; the onus is on the claimants to establish that the definition of Convention refugee or person in need of protection applies to them. In this respect, the RPD considered that: [22] When claimants testify under oath, this creates a presumption that their statements are true, unless there is a reason to doubt them. The consistency of the account is an important credibility indicator. [23] Furthermore, if they are significant, omissions in the BOC Form alone may constitute a reason to doubt the truthfulness of the allegations and find that there is a lack of credibility. [24] Lastly, major contradictions between the oral testimony and the account may also lead to inferences that seriously undermine the claimants' credibility. [25] This is the case for the appellants. The RPD was not overzealous, the omissions and contradictions it found were obvious. What is more, it clearly explained in its reasons why it is reasonable to expect a claimant to divulge all of the required information, including former addresses.13 [26] The RPD did not believe-with reason-the appellants' supposed travels and moves before they decided to leave Haiti, and the failure to enter them in their IMM5669 and the contradictions in their testimony led the RPD to conclude that they were added to the written account in an attempt to claim that there was no viable internal flight alternative.14 [27] The RPD clearly explained that [translation] "the claimants allege to have stayed with numerous friends who lived throughout Haiti, but they failed to disclose this information in their immigration form and when they did, the information in the immigration form contradicted their own testimony."15 [28] These omissions and contradictions are related to facts that are central to their claim, they are not tangential; consequently, the RPD did not err on this point. [29] With regard to the principles set out in the Mohacsi decision, while the RAD subscribes to all of these principles, it cannot agree with the appellants' arguments because after listening to the recording of the hearing and reviewing the entire record, at no point is there a microscopic analysis or an analysis based on minor or tangential issues. [30] The RPD thoroughly reviewed the record, and it was patient and courteous during the hearing. The appellants failed to establish a well-founded fear of persecution should they return to their country. [31] The RAD, like the RPD, considered all of the evidence submitted and retains that which is central to the elements that all claimants must establish. General lack of credibility and violation of principles of natural justice [32] Furthermore, the appellants maintain that the RPD contradicted itself in its reasons by first recognizing the female appellant's credibility in paragraph 20 and then finding in paragraph 28 that the appellants were, in general, not credible.16 [33] The RAD disagrees. At no point in paragraph 20 of its reasons does the RPD note that it found the female appellant to be credible. [34] Paragraph 20 of the RPD's reasons is about a specific omission related to certain details in the appellants' testimony. The omission concerns the alleged threats and the $20,000 ransom. The RPD was correct in noting that the male appellant could not provide the requested details, whereas his spouse could, but this does not mean it found the female appellant's entire testimony to be credible. [35] The appellants maintain that the RPD violated the principles of natural justice by not properly considering some of the evidence,17 specifically two testimonies18 submitted in support of the appellants. [36] The RPD thoroughly explained why it did not give any probative value to the letter from XXXX XXXX (Exhibit D.4)19 nor to the letter from XXXX XXXX XXXX the appellants' son (Exhibit D.5).20 The RPD asked the appellants several questions about these two exhibits. They did not provide any satisfactory explanations for the inconsistencies in Mr. XXXX letter, and their son's statement merely repeats the allegations the RPD found not to be credible. [37] The case law has established that the RPD may reach a conclusion regarding weight after having previously assessed credibility or probative value or both.21 Furthermore, it is open to the RPD not to give evidentiary weight to documents based on underlying elements found not to be credible.22 [38] Documentary evidence is not assessed in isolation from the overall claim. Where the claimant's personal testimony and evidence are not credible, it is reasonable for the RPD to have credibility concerns with the supporting documentary evidence, and it can only accord it minimal weight.23 [39] Lastly, this element must be considered in context, alongside the multiple other omissions and contradictions of the appellants. These documents do not match the appellants' testimonies, and the explanations provided at the hearing were unsatisfactory. [40] With regard to natural justice, it is necessary to ask if its principles were complied with considering the specific context of each case.24 [41] Procedural fairness aims to ensure that claimants understand the proceeding, have a reasonable opportunity to tender evidence that supports their claim and are given a chance to persuade the RPD that their claims are well-founded.25 [42] In this case, all of these principles were complied with. The RPD's decision is correct. The RPD did not violate a principle of natural justice or procedural fairness. [43] Considering the multiple credibility issued raised by the RPD, the RAD finds that the RPD did not err in not giving any probative value to the exhibits in question. Failure to claim asylum in the United States [44] The appellants maintain that the RPD suggested in its reasons that the appellants had an obligation to claim asylum in the United States before coming to Canada.26 [45] The RAD finds that the RPD did not err in its conclusions about the failure to claim asylum in the United States. [46] The appellants recognize in their memorandum, in referencing Wehbe,27 that [translation] "the failure to claim refugee protection elsewhere can be interpreted as inconsistent with a well-founded fear of persecution ...."28 The appellants left their country for the United States, where they stayed for one month without claiming asylum before arriving at the Canadian border. The explanation they provided is unsatisfactory. They stated that they did not claim asylum or seek counsel in the United Stated on the advice of an uncle. [47] These explanations are clearly insufficient in the eyes of the RAD. What is more, the appellants were not under any urgent obligation to leave the United States because they had valid visas; the appellants' identity documents show that these visas were still valid at the time of RPD hearing. [48] They had an ample amount of time to do the research to apply for asylum in the United States. In addition to the previous findings, the appellants' credibility is undermined by their failure to take the steps to apply for asylum in the United States. [49] This reason is not determinative, nor is it in and of itself sufficient to reject the claims, but the assessment of the appellants' credibility is based on omissions and contradictions that are far more determinative. This element is just one among others that rendered the appellants' testimony not credible. As a result, the RPD did not err in its conclusion. B. Did the RPD err in failing to objectively assess whether a person with the appellants' profile faces a prospective risk, despite its credibility findings? [50] The appellants maintain that the RPD did not objectively assess their profile.29 They cite a number of Federal Court decisions about objective evidence to conclude that [translation] "[d]espite the member's findings about female appellant's credibility regarding past events, the member was nevertheless obligated to determine whether the objective evidence demonstrated that the appellants' faced a prospective risk in Haiti."30 [51] In their memorandum, the appellants reiterate what they had already stated in the BOC Form and during the RPD hearing, that is, that they could not expect protection from the state, that they would be unsafe no matter where they were in Haiti and that the documentary evidence demonstrates that criminal groups, like the one harassing them, benefit from the support and collusion of certain Haitian authorities.31 [52] The appellants also refer to the National Documentation Package (NDP) which [translation] "confirms that the problem of moderately wealthy people-that is, people with the same profile as the appellants-being kidnapped for ransom by organized crime groups is increasingly common in Haiti."32 [53] In the same vein, the appellants maintain that [translation] "[t]he member was responsible for evaluating whether aspects of the appellants' profile, particularly their country of nationality and the fact that they received threats because of that profile, supported their claim based on future risk. He did not do so in this case."33 [54] After reviewing the entire record and the documentation in question, and after listening to the recording of the RPD hearing, the RAD concludes that the appellants failed to demonstrate, on a balance of probabilities, that they would be subjected to a risk to their lives, or a risk of cruel and unusual treatment or punishment should they return to Haiti. [55] Indeed, at the hearing, the appellants constantly described a generalized risk and nothing specific. [56] The case law has firmly established that the onus is on the claimant to establish, on a balance of probabilities, the facts that their claim is based on. For a claim to be allowed under section 97 of the IRPA, the appellants must personally face a risk that is not faced generally by other individuals in or from that country. [57] The RPD did not believe the appellants' testimony about the events of persecution or the alleged threats and risks, and the documents filed to corroborate their story do not suffice to make their testimony credible when it is fundamentally not. [58] The RAD also considered the appellants' arguments and reviewed all of the evidence, including the NDP. In the RAD's opinion, it was not established that the RPD's conclusions in its assessment of the prospective risk were incorrect. The Federal Court did find that although the documentary evidence may show that acts of violence are committed [in a country], it is reasonable to find that a claimant is not at risk when, according to the evidence, the claimant's profile does not match that of the circumstances or persecuted persons.34 [59] The RPD did not err on this point: the appellants' testimony and evidence for central elements of their claim do not corroborate the allegation of a personalized risk; they are unreliable, contradictory and inconsistent. [60] In closing, the RAD concludes that the RPD's decision must be upheld in these circumstances because the testimony that emerged throughout the examination lacked credibility concerning factors that are central to the claim. The appellants did not establish their credibility or that they would face a serious possibility of persecution or a risk under section 97 of the IRPA, should they return to their country of origin, Haiti. CONCLUSION [61] The RAD dismisses the appeal and confirms the determination of the RPD that the appellants are neither Convention refugees nor persons in need of protection pursuant to paragraph 111(1) of the IRPA. Mokhtar Lamani Mokhtar Lamani January 21, 2020 Date IRB translation Original language: French 1 Appellants' memorandum, para. 60. 2 Refugee Protection Division (RPD) Reasons, para. 30. 3 Appellants' memorandum, para. 35. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 RPD Reasons, Introduction of paragraphs regarding credibility issues. 6 Appellants' memorandum, Part III(a), page 7. 7 Appellants' memorandum, para. 36. 8 Ibid. para. 37. 9 Ibid. para. 38. 10 Ibid. para. 39. 11 Mohacsi v. Canada (MCI), 2003 FC 772, paras. 20, 21 and 23. 12 Appellants' memorandum, para. 40. 13 RPD Reasons, paras. 13 to 17. 14 Ibid. para.16. 15 Ibid. para. 16. 16 Appellants' memorandum, from para. 41 onwards. 17 Ibid. para. 44. 18 RPD Record, exhibits filed by the male claimant, exhibits D.4 and D.5. 19 RPD Reasons, para. 17. 20 Ibid. para. 29. 21 Magonza v. Canada (MCI), No. IMM-1506-18, Grammond, January 7, 2019; 2019 FC 14, paras. 27 to 31. 22 Lawani v. Canada (MCI), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924. 23 Ogaulu v. Canada (MCI), No. IMM-3862-18, McDonald, April 30, 2019; 2019 FC 547, para. 26. 24 Ching v. Canada (MCI), 2015 FC 725 para 75. 25 Nemeth v. Canada (MCI), 2003 FCTD 590, para. 10. 26 Appellants' memorandum, paras. 48 to 50. 27 Wehbe v. Canada (MCI), 2011 FC 326. 28 Appellants' memorandum, para. 49. 29 Ibid. paras. 51 to 54. 30 Ibid. para. 52, citing Fixgera Lappen v. Canada, 2008 FC 434. 31 Ibid. para. 54. 32 Ibid. para. 56. 33 Ibid. para. 58. 34 Kipre v. Canada (MCI), 2017 FC 92. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / Nº de dossier de la SAR : MB9-04157 MB9-04158 RAD.25.02 (April 4, 2019) Disponible en français 4 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