MB7-21421

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 File No. / N° de dossier de la SAR : MB7-21421 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision July 10, 2018 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the persons who are the subjects of the appeal Me Laurent Bernier Conseil des personnes en cause Designated representative N/A Représentante désignée Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division (RPD) that the appellant, XXXX XXXX XXXX XXXX, is neither a "Convention refugee" nor a "person in need of protection" within the meaning of section 97 of the IRPA. [2] The appeal is dismissed. FACTUAL BACKGROUND [3] The appellant is originally from Port-au-Prince. In his Basis of Claim Form (BOC Form), he alleges that on the night of XXXX XXXX, 2016, at around XXXX XXXX XXXX a.m., unknown individuals broke into his apartment and stole goods, including $5,000. The thugs hit him and his son. They threatened to kidnap his son if a ransom of $200,000 was not paid. [4] The appellant cannot identify the aggressors, but he believes that the thugs have a contact within the family because, when he took refuge in the countryside, they called his daughter in Canada. [5] His son went to Guyana. The appellant left Haiti on May 3, 2017. He fears returning there because he could be killed or kidnapped by the unknown individuals who broke into his home, under the pretext that he has family abroad and that he is able to pay money. Impugned decision [6] On October 4, 2017, the RPD rejected the refugee protection claim. In its reasons, it made the following findings: [translation] The refugee protection claim will be reviewed pursuant to paragraph 97(1)(b) of the IRPA because the facts alleged have no nexus to any of the five Convention grounds; The appellant failed to credibly establish his allegations that his life was in danger. In this regard, the RPD noted that his testimony was not spontaneous. He was so vague and general that it is not clear whether or not the incident on XXXX XXXX, 2016, happened; The RPD noted significant omissions and inconsistent answers regarding the main reason for his refugee protection claim. Alternatively, the RPD determined that the appellant has an internal flight alternative (IFA) in Thomazeau. GROUNDS OF APPEAL AND REMEDY SOUGHT Appellant's position [7] This appeal raises the following issue: 1. Were the RPD's credibility findings reasonable?1 SCOPE OF THE APPEAL [8] The RAD must determine whether the RPD's decision is correct,2 except in cases where the credibility of oral testimony is at issue and the RPD enjoys an advantage, in which case the RAD must assess the findings by using a standard of reasonableness, modified to apply to its particular context.3 In its independent analysis of the evidence, the RAD must decide whether the RPD erred as alleged. If an error of fact, of law or of mixed fact and law was made, the RAD must intervene using one of the means set out in sections 110 and 111 of the IRPA. MERITS OF THE APPEAL [9] I agree with the RPD, the alleged fear has no nexus to any of the five Convention grounds. Consequently, the refugee protection claim must be reviewed under section 97 of the IRPA. This distinction is, in my opinion, important because the standard of proof in assessing the prospective risk under paragraph 97(1)(b) of the IRPA is higher than that under section 96 of the IRPA. [10] The appellant submits the following arguments against the RPD's credibility findings: [translation] The RPD failed to consider the particular circumstances of his situation as a XXXX-year-old and his cultural differences. In this regard, he argues that the RPD erred in finding that his credibility is undermined by the fact that he refers to himself in the first person plural rather than the first person singular; The RPD made negative credibility findings based on a poor understanding of the facts; The RPD dwelled on details and minor differences between the appellant's testimony and his daughter's testimony. The RPD also erred in reviewing the police report. [11] Having conducted an independent analysis of the evidence and listened to the recording of the hearing, I find that the RPD rendered the appropriate decision, even though I do not share its viewpoint on some of the credibility issues it considered. [12] The appellant testified that he was a victim of two incidents during which he was robbed. The first incident took place on a date that he was unable to specify, but he testified that the incident had happened in 2015. He stated that one XXXX, while he was leaving his home to go to Port-au-Prince for the market the next day, two thugs suspecting he had money on him robbed him.4 [13] Without questioning whether the appellant was robbed in 2015 in the circumstances alleged, the RPD noted that the appellant testified in a general manner and using the third person. However, based on the principles established in Prophète, the RPD considered the incident to be an example of a generalized risk.5 [14] Other than submissions concerning the manner in which he testified, which are examined below, the appellant did not challenge the RPD's findings that the robbery in 2015 constitutes an example of a generalized risk. [15] I agree with the RPD. The appellant's statements that merchants in general or anyone conducting commercial activities involving amounts of money risk being targeted by thugs, along with his testimony regarding the circumstances of the 2015 robbery, suggest that he was the victim of widespread criminality in Haiti. However, the appellant stated that the incident was not the reason he had left Haiti.6 Incident on XXXX XXXX, 2016 [16] In the BOC Form, the appellant alleges that on the night of XXXX XXXX, 2016, at around XXXX XXXX XXXX a.m., thugs broke into his home. They stole jewellery and $5,000. The thugs also threatened to kidnap his son if the appellant did not pay them an amount of $200,000. Because of the contradictory statements and inconsistencies in the evidence, the RPD did not believe that the incident had happened. Its decision is based on the following factors, among others: * Inconsistency in the ransom amount. The BOC Form indicates $200,000, whereas at the hearing, the appellant testified that the amount demanded was $100,000; * The RPD did not find it credible that thugs in Haiti were able to obtain his daughter's cellphone number in Montréal; * In response to question 2 a) in the BOC Form, the appellant states that a group of men broke into his home on XXXX XXXX, 2016, whereas at the hearing, he mentioned two individuals; * In response to question 2 a) in the BOC Form, he states that the thugs had tied him up and beaten him, as well as his son, whereas at the hearing, he did not testify that his hands had been tied or that they were beaten; * The appellant's statements are inconsistent as to where he took refuge with his son following the incident on XXXX XXXX, 2016; * The appellant's statements do not corroborate the information in Exhibit P-1, a report prepared on XXXX XXXX, 2016, by the peace court in Carrefour. The RPD noted that the peace court report omitted material facts. [17] Alternatively, the RPD found that an internal flight alternative (IFA) is available to the appellant in Thomazeau. Vulnerability as a result of age and cultural differences [18] The appellant argues that the RPD failed to consider his vulnerability because of his age and cultural differences when it assessed his credibility. [19] In analyzing the incident during which he was allegedly robbed in 2015, the RPD states: [translation] "that the claimant spoke in general terms and in the third person to describe what had happened, as if he was recounting what he thought had happened to people in general." [20] First, I note that despite that comment, the RPD did not question the possibility of the appellant being robbed in 2015. However, it found that the incident constituted a generalized risk. [21] Next, respectfully, I am not of the opinion that in this case, the appellant's age kept him from presenting his claims before the RPD. In this case, I also am not of the opinion that cultural differences account for the manner in which the appellant testified or the inconsistencies in the testimony. [22] In listening to the recording of the hearing, I noted that the appellant responded to the member's questions confidently when she confronted him with statements that she considered inconsistent. I specifically refer to his explanations regarding the moment when his son allegedly left their apartment on XXXX Street to take refuge in Port-Salut. The RPD understood that they paid a $50 transportation fare the next day, XXXX XXXX, 2016, at around 8:00 a.m., however, in response to question 10 in the IMM-5669 form, it is written that he lived on XXXX Street in Port-au-Prince until XXXX 2017. When asked to explain the inconsistency, the appellant stated that he had gone to Port-Salut after the incident, but that he had not specified the date on which he had gone. He added that he had not specified that it had been on XXXX XXXX, 2016, because the next day, he went to the police. He pointed out to the member that she had asked him at what time he left and how he left, but not when.7 [23] I agree with the distinction made by the appellant. He did not state that he left his apartment in Port-au-Prince on XXXX XXXX, 2016. However, I am also not satisfied that there is no need to consider the member's questions within his context; she questioned the appellant to find out when he had taken refuge elsewhere with his son. [24] For my part, I nevertheless find that overall, the appellant's various statements and the review of those statements next to those of his daughter cast serious doubt on the fact that he lived elsewhere than Port-au-Prince before his most recent trip to Canada on May 3, 2017. In my opinion, he has not conclusively established that he lived elsewhere. Allow me to explain. [25] Regardless of the date on which he allegedly left Port-au Prince, the appellant first stated a few times that when the thugs let them leave, he was forced to take refuge with his son in Port-Salut, in his parents' home.8 Later, at the hearing, he stated that he had first lived in Port-Salut, then at a family member's home in Taba. I find it surprising that, if, as he claims, he had to live elsewhere after the incident on XXXX XXXX, 2016, the information provided in response to question 10 of the IMM-5669 form does not include this fact. [26] The appellant also stated that his parents' house in Port-Salut was destroyed by hurricane Mathew. He stated that he did not remember the date, but he believed that it had been in 2017. His daughter, who lived in Canada, sent him money to help the members of her family. The appellant left Haiti on May 3, 2017.9 The evidence indicates that hurricane Mathew hit Haiti in October 2016. Consequently, if the house was destroyed in October 2016, his statements that he took refuge there after the incident on XXXX XXXX, 2016, are questionable. [27] Furthermore, his daughter testified that following the incident on XXXX XXXX, 2016, she contacted friends in Haiti so they could help her brother who was in danger. According to her statements, her brother went to Taba the evening of the incident, whereas the appellant stated that his son went to Port-Salut two or three days later and then went to Taba. These significant inconsistencies raise serious doubt in the mind of a decision-maker. Contradictions [28] The RPD noted that the BOC Form states that the thugs demanded $200,000 as ransom, whereas at the hearing, he testified that they demanded $100,000. [29] The RPD did not err in considering this contradiction, among other things. I noted that in the BOC Form, the appellant twice states that the thugs stole $5,000 from him, whereas at the hearing, he stated that the thugs stole $300 from him. The difference is, in my opinion, significant and casts doubt on what is alleged. Inconsistencies between the appellant's statements and Exhibit P-1 [30] The appellant filed Exhibit P-1, a report prepared at his request for a fee of $100 by the Carrefour peace court, in order to establish that the incident on XXXX XXXX, 2016, happened.10 [31] The RPD noted that the report does not specify that the claimant's son was present during the robbery on XXXX XXXX, 2016. It also does not mention that the thugs threatened to kidnap his son if the appellant did not pay them a ransom of $200,000. The RPD also found it surprising that the appellant had informed the authorities of the incident, when at the start of the hearing, he stated [translation] "that a person could get themselves killed for reporting a crime to the police." [32] I do not agree with the criticisms against the claimant, according to which, in response to question 2 a) of the BOC Form, he states that [translation] "the thugs had tied him up and they beat him and his son," when at the hearing, he did not mention those facts. [33] I carefully reread the statements given in response to question 2 a) of the BOC Form, and nowhere did I see that the appellant had written such a thing. He also did not mention those facts at the hearing. This error by the RPD is not sufficient to set aside the determination, as there are too many inconsistencies in the evidence regarding what allegedly happened the night of XXXX XXXX, 2016. [34] First, like the RPD, I find it surprising that the appellant had gone to file a complaint, when according to him, such an act would put the complainant at risk of being killed.11 [35] I also agree with the RPD when it found that the omission of important information in the report casts serious doubt on what is alleged. Specifically, the RPD noted the following factors: * The appellant claims that his son, XXXX XXXX, was present during the incident on XXXX XXXX, 2016, but there is no mention of this fact in the report; * The thugs threatened to kidnap XXXX if a $200,000 ransom was not paid, but there is no mention of this fact in the report; [36] Those factors are not trivial. According to the appellant's claims, his son was specifically targeted by the thugs. According to his daughter's testimony, the life of her brother had been in danger. It was on the recommendation of his daughter in Canada that the appellant filed a complaint with the authorities. That the report does not include these facts is questionable. But there is more. [37] If any probative value should be given to the peace court's report, I cannot overlook the following inconsistencies: * The report states that the appellant was tied up and physically and verbally assaulted with extreme violence, when the appellant's oral and written statements make no mention of this; * The report states that on XXXX XXXX, 2016, the thugs threatened to kill him if he filed a complaint with the police, but the appellant's oral and written testimony made no mention of this fact; * The appellant testified orally and in writing that the incident occurred at around XXXX XXXX XXXX a.m., but the report states that it happened before XXXX. [38] These factors, when considered cumulatively and as a whole, lead me to conclude that the RPD rendered the appropriate decision, despite the fact that I do not agree with some of the factors that it considered, including the fact that he is not credible, or that thugs in Haiti can obtain the telephone number of a Canadian resident. That factor, in this case, is not determinative because after reviewing all the evidence, I am of the opinion that the RPD was correct to reject the appellant's refugee protection claim. The appellant failed to credibly establish that the incident on XXXX XXXX, 2016, had happened. [39] In my opinion, he has failed to establish that the RPD erred in finding that he did not establish that he would likely face one of the risks set out in section 97, were he to return. As this issue is sufficient to dispose of the appeal, there is no need for me to review the IFA. CONCLUSION [40] For these reasons, the RAD confirms the determination of the RPD that XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor "a person in need of protection" within the meaning of section 97 of the IRPA. [41] The appeal is dismissed. Maria De Andrade Me Maria De Andrade July 10, 2018 Date IRB translation Original language: French 1 Appellant's memorandum, page 26. 2 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 X (Re), 2017 CanLII 33034 (CA IRB). 4 Hearing CD, 26:46 to 36:00. 5 Prophète, Ralph v. M.C.I. (F.C., No. IMM-3077-07), Tremblay-Lamer, March 12, 2008; 2008 FC 331, para. 23, confirmed by Prophète, Ralph v. M.C.I. (F.C.A., No. A-168-08), Létourneau, Blais, Trudel, February 4, 2009, 2009 FCA 31. 6 Hearing CD, 36:15 to 36:45. 7 Hearing CD, 56:08 to 58:48. 8 Hearing CD, 46:26 to 48:00. 9 RPD record, page 69. 10 RPD record, page 80. 11 Hearing CD, 35:00 to 36:15. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-05856 MB5-05857 MB5-05858 MB5-05859 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-21421 10 RAD.25.02 (7 février 2014) Available in English