MB4-02184

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 : MB4-02184 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision December 22, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Jean-Ernest Pierre Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, a citizen of Haiti, is appealing against a decision of the Refugee Protection Division (RPD). He submits that he is credible and that there are no inconsistencies or implausibilities in his testimony or the evidence on the record. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form) that he signed on January 3, 2013, the appellant states that he is a citizen of Haiti, born on XXXX XXXX, 1967; that he is Protestant; that he speaks Creole and French; that his wife and two sons were living in Haiti at that time; and that another son was living in a location that was not indicated.1 [4] In his BOC Form, the appellant states that, during the night of November 12 to 13, 2012, a group of individuals tried to kill him in his yard in Gonaïves. He states that he believes that he could be killed if he returned to his country.2 [5] In his BOC Form, the appellant states that he reported the first threat he received to the Haitian authorities, but they did nothing, and the criminals progressed to taking action, entering his property with the intent to kill him.3 [6] In his BOC Form, the appellant states that he did not move to another part of his country to seek refuge, that he was forced to go into hiding to see whether the criminals would be arrested by the legal authorities. He states that he left his country on XXXX XXXX XXXX 2012, because the situation was very difficult for him and that he could have died had he not made that decision.4 [7] In amendments made to his BOC Form, the appellant specifies that one of his sons was living in Canada and that he had other family members in Haiti.5 [8] In these amendments, the appellant states that some facts were missing; therefore, he added that he is a political activist who was involved in the ousting of President Aristide and that, since President Martelly came to power, he had joined a discussion group and been quite critical of the Martelly team. He also states that, on XXXX XXXX XXXX 2012, he denounced the incompetence and dishonesty of the Martelly family and their stranglehold on the administration of public funds. Two participants then made some scathing remarks, and the appellant believes that he was attacked on November 13, 2012, because of his negative comments about President Martelly or about the former Lavalas regime.6 [9] In his amendments, the appellant states that, on October 1, 2012, he was hired by the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (XXXX) [XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX] to eradicate XXXX XXXX and that, after one week, he was able to identify the problem, present solutions and implement them. He states that he provoked the wrath of administrator XXXX, who had been administering the funds before he was hired by the organization. He wonders whether this administrator was behind the threats he received on October 20, 2012, and/or the murder attempt on November 13, 2012.7 [10] In his amendments, the appellant states that, on October 29, 2012, as he was taking a walk, a group of five young people threatened him. After consulting a lawyer, he filed a complaint with the government commissioner. He states that, during the night of November 12 to 13, 2012, a friend in the neighbourhood called him and told him to leave his home. He then heard gunfire, climbed over his neighbour's wall and realized that he was covered in blood.8 [11] In his amendments, the appellant states that he then contacted his lawyer, who sent someone to help him; he went to a safe place and called a doctor to dress his wounds and give him antibiotics. He states that, on November 13, 2012, he went to his home with his lawyer to make the report, and decided to go into hiding until the situation had been cleared up. He also stopped going to work regularly.9 [12] In his amendments, the appellant states that he lived where his lawyer had set him up, but when he became suspicious of some new people lurking around the neighbourhood, he went somewhere else to be safe. He states that he understood that the Haitian state had neither the intention nor the ability to protect him.10 [13] In his amendments, the appellant states that his wife and the other children went to live with a sister, XXXX, in another neighbourhood and that she took over their business to avoid further attacks.11 [14] In addition to his BOC Form and the amendments to his BOC Form, the appellant submitted a number of documents as evidence before the RPD.12 B. RPD decision [15] The RPD hearing took place on April 15, 2014, and the decision rejecting the claim for refugee protection was rendered on May 21, 2014.13 [16] At the start of its decision, the RPD notes that the claimant, now the appellant, came to Canada with one of his sons who unfortunately passed away a few days before the hearing.14 [17] The RPD noted a number of omissions, contradictions and inconsistencies in the claimant's testimony compared with his written testimony, which undermined his credibility.15 [18] At the start of its reasons for decision, the RPD indicates that the amendments to the BOC Form were so significant that they created a number of inconsistencies, omissions and implausibilities that undermined the claimant's credibility.16 [19] Subsequently, the RPD states that the allegations concerning the claimant's political involvement were entirely absent from the BOC Form, from the answer to question 9 of the IMM 5669 form, and from the Haitian documents submitted as evidence. The RPD was of the opinion that the explanations that he was not represented by a lawyer when he completed the initial BOC Form and that he did not understand the questions were unsatisfactory, given that the appellant is fluent in French. Accordingly, the RPD found that the omission of his political involvement from the initial BOC Form, the IMM 5669 form and the documents submitted as evidence undermined the claimant's overall credibility.17 [20] Furthermore, the RPD did not believe the claimant's fear of his former XXXX colleagues. His testimony was unclear and lacked conviction. In addition, the RPD confronted the claimant with the fact that the job he had held was not mentioned in his Canadian visa application file signed on October 10, 2012. The RPD was of the opinion that his explanation, that he had filled out the form before he started working for the XXXX, was unsatisfactory, since the claimant signed the documents on October 10, 2012.18 [21] Finally, in terms of the ongoing threats after the events during the night of November 12 to 13, 2012, the RPD found that the claimant was not credible. First, he testified that he had returned to work six or eight times following these events, even though he was injured and had not wanted to go to the hospital for fear of being found there by the criminals. The RPD was of the opinion that the explanation that the criminals would not dare to attack him in broad daylight was unsatisfactory. Second, the claimant failed to state in either his initial BOC Form or the amendments that his family members were living in hiding and continued to receive telephone threats. The RPD was of the opinion that his explanation that the threats were made after he had signed the documents was unsatisfactory.19 [22] Accordingly, the RPD concluded that it did not believe a word of the story of persecution, mistreatment, and risks and threats to the claimant's life.20 C. Grounds of appeal and decision sought [23] In his memorandum, the appellant states that he is credible and that there are no inconsistencies or implausibilities between his testimony and the evidence on the record.21 [24] In terms of his political involvement, the appellant states that the RPD chose to ignore his explanations that he had not answered that he was a member of an organization because he was traumatized and because he had never been a member of a political organization, although he had taken part in a number of political activities and had been about to form a political group when the criminals attacked him. The appellant also states that it is a common practice to make changes to the BOC Form and that, if he had not done so, the RPD would have said that he was adjusting his testimony. He added that the RPD is not very familiar with the linguistic situation in Haiti, where 60% of literate people claim to speak French, but barely 10% are able to do so properly.22 [25] In terms of his work experience with the XXXX, the appellant states that he submitted his visa application before he was hired by the XXXX. He adds that the employment information cannot cast doubt on his credibility and that, in any event, he had provided the correct information on other forms.23 [26] Concerning the threats following the events that took place during the night of November 12 to 13, 2012, the appellant states that the RPD showed a lack of rigour in raising the point that he had gone to work six or eight times, when the substance of his claim is based on the ground of his political opinion. He states that the RPD failed to understand that it is easier for criminals to attack a victim in a hospital bed than at work, because there is less surveillance in a hospital. Finally, with respect to the omission regarding his family's situation in Haiti, the appellant states that, after his son died, he was not in full control of himself; he also submits that a statement that his narrative was complete and up to date cannot be considered a major omission undermining his credibility.24 [27] The appellant is asking the RAD to set aside the RPD's determination and to allow his claim for refugee protection.25 IV. HEARING BEFORE THE RAD [28] In his memorandum, the appellant does not indicate that he is introducing new evidence before the RAD, but he does ask that a hearing be held in order to establish that he is credible and that there are no implausibilities or inconsistencies between his testimony and the evidence on the record. [29] Pursuant to subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the RPD's record of proceedings. Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim and whether it justifies allowing or rejecting the refugee protection claim. If so, the RAD may then hold a hearing. [30] In this case, the appellant did not submit new evidence within the meaning of subsection 110(4) of the IRPA. Therefore, there is no cause to hold a hearing before the RAD.26 V. APPROACH TO BE TAKEN IN THIS APPEAL [31] In a letter received by the IRB on September 19, 2014, the appellant's lawyer states that the standard of review that must be adopted in this appeal is that of whether or not the RPD relied on a wrong principle of law or misapprehended the facts to the point of making a palpable and overriding error.27 [32] In Alyafi, after reviewing the reasoning adopted by his Federal Court colleagues in previous decisions, Justice Martineau notes that they appear to have interpreted the IRPA differently and contradictorily with respect to the nature of appeals before the RAD.28 He then identifies three approaches: the standard of judicial review, or "reasonableness"; the standard of appellate review or of "palpable and overriding error" (Garcia Alvarez, Eng and Spasoja29); and a composite and variable standard of review resulting from the nature of the claim before the RAD-characterized as a "hybrid appeal"-and the particular nature of questions of fact, or of mixed fact and law, raised by an appellant (Huruglica30).31 [33] After dismissing the first approach, Justice Martineau states that the second and third approaches prevail today, but that they create a real dilemma, given the differences that exist between them.32 Rather than choosing between these two approaches, applying the principle of judicial comity, Justice Martineau states that he chose the path of wisdom: allowing the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada.33 [34] In Djoussou, Justice Martineau demonstrates that the approach then used by the RAD to determine its role in relation to the RPD was an unacceptable outcome in law.34 He is unequivocal: an appeal before the RAD is not a judicial review, as the RAD has much broader powers on appeal than those of a court of law sitting in judicial review.35 He invites the RAD to consider the three options before it (a true appeal, an appeal de novo, and a hybrid appeal) with an open mind.36 In the conclusion of this decision, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference on the RAD, until such time as the Federal Court of Appeal or the Supreme Court of Canada has decided the issue definitively. He states that, in the interim, the onus will be on the RAD to review the IRPA and to adopt a new test based on an analysis that will take all the relevant factors into account. He adds that, in his opinion, the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review, and a composite and variable standard of review) discussed in Alyafi are not the only options to consider-the absence of deference in the case of any error of law, fact, or law and fact being also a possible option.37 [35] In Akuffo, Justice Gagné states that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions diverge within the Federal Court on the level of deference that is owed.38 In Sajad and Bui, Justice Shore ruled that the RAD owes a certain level of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.39 [36] Since the RPD's findings in this case primarily relate to the appellant's credibility, I am of the opinion that, in light of Federal Court case law to date, I must show a certain level of deference to these findings. VI. ANALYSIS OF THE MERITS OF THE APPEAL [37] Having read and examined all the evidence on the record, the RPD's reasons for decision and the appellant's arguments, I conclude, as did the RPD, that the appellant is simply not credible. My reasons are as follows. [38] The case law has clearly established that the RPD can reasonably draw a negative inference as to credibility based on omissions or contradictions between the oral testimony and the written statements made prior to the hearing, taking into account all the evidence, which must be assessed together and in a coherent manner.40 The case law has also clearly established that the RPD can reject explanations provided for such contradictions or omissions if it considers them to be unsatisfactory.41 [39] In his BOC Form, the appellant signed a declaration stating that the information provided in the form is complete, true and correct; that he was able to read French and to fully read and fully understand the entire content of the form and all attached documents; and that his declaration had the same force and effect as if made under oath.42 Later, as permitted by the RPD Rules, he was able to make changes to his form.43 That being said, based on the case law, although minimal changes to the BOC Form, supported by a plausible explanation for the changes, cannot impugn the credibility of an individual claiming refugee protection, the impact is different when the changes have to do with the facts in the BOC Form. In such a case, if the explanations provided by the claimant are not deemed satisfactory, plausible or credible, the changes can in fact undermine the credibility of the claimant's narrative.44 [40] The arguments presented by the appellant in his memorandum are without merit. [41] First, there was no indication that the changes to his BOC Form represented the one and only version of the information provided. Even if it had been indicated that they replaced the initial BOC Form entirely, the RPD was nevertheless entitled to ask questions and assess the appellant's credibility, given that the changes and additions were not only significant, but also major. [42] I then carefully read the forms completed and signed by the appellant, specifically his original BOC Form and forms IMM 000845 and IMM 5669,46 and I note that they were all completed by the appellant in French and that the appellant is highly educated in French, not only in his country of origin, but also in France for three years.47 As a result, it is reasonable to conclude that he has a good command of the French language. [43] With respect to his argument that he did not answer that he was a member of an organization because he was traumatized and because he had never been a member of a political organization, it must be noted that question 9 of IMM 5669 asks about any political, social, youth or student organizations, trade unions and professional associations he has been a member of or been associated with. In the initial version of the form, the appellant wrote NONE, thereby indicating that he had never been a member of or associated with any organizations.48 He could have written that, since President Martelly came to power, he had joined a discussion group that was quite critical of the Martelly team. However, he did not do so. In an amended version of the same form, he answered that he was the coordinator for a political organization in the XXXX department from 1994 to 1997.49 That answer only partially corresponds to the story he presented in the amended version of his BOC Form-that after being involved from 1994 to 1997, he then participated in meetings to think about the situation in the country and, since President Martelly came to power, in a discussion group critical of President Martelly and of the Lavalas' terrible legacy.50 [44] In terms of his work experience with the XXXX, it is true that the appellant states in the initial version of IMM 5669 that he worked for this organization from October to December 2012.51 Even so, the main reason the RPD did not believe that the appellant had been threatened by the members of this organization is that his testimony on this subject was unclear and lacked conviction. [45] Finally, regarding the threats following the events during the night of November 12 to 13, 2012, I am of the opinion that the RPD was entitled to ask the appellant to explain why he had returned to work six to eight times when he alleged that his life was in danger and he was unable to go to the hospital out of fear for his life. If the criminals had really wanted to attack him, they could easily have done so a short distance from his workplace, where there was no surveillance. [46] With respect to the omission regarding his family's situation in Haiti, it is, of course, impossible not to be sympathetic to the appellant's grief following his son's death. However, the fact remains that this omission is one among several contradictions and omissions. An accumulation of contradictions and omissions can be fatal to the credibility of a person claiming refugee protection.52 All the relevant and important facts must be included in the initial or amended BOC Form, and the oral evidence at the hearing must go on to explain the information in the BOC Form.53 [47] Accordingly, after reading and analyzing all the evidence in this case, the RPD's reasons for decision and the appellant's arguments, I am of the opinion that the RPD did not err in finding that the appellant's overall credibility was undermined by the various contradictions and omissions. [48] I would add that, under subsection 107(2) of the IRPA, the RPD could have stated in its decision that there was no credible basis for the claim, in that the appellant presented no credible or trustworthy evidence on which it could have made a favourable decision. VII. CONCLUSION [49] For the foregoing reasons, I confirm the RPD's determination that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [50] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette December 22, 2014 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 12, 17 and 20 of the RPD record. 2 Idem, pages 12 and 13 of the RPD record. 3 Idem, page 13 of the RPD record. 4 Idem, page 14 of the RPD record. 5 Amended BOC Form, pages 24 to 27 of the RPD record. 6 Idem, pages 36 and 37 of the RPD record. 7 Idem, pages 37 and 38 of the RPD record. 8 Idem, pages 38 and 39 of the RPD record. 9 Idem, page 39 of the RPD record. 10 Idem, page 40 of the RPD record. 11 Idem. 12 The list of these documents is reproduced at pages 23 and 83 of the RPD record. The documents themselves are reproduced at pages 24-82 and 84-99 of the RPD record. 13 RPD decision, pages 3 to 10 of the RPD record. 14 Idem, paragraph 8, page 4 of the RPD record. 15 Idem, paragraph 10, page 5 of the RPD record. 16 Idem, paragraph 11, page 5 of the RPD record. 17 Idem, paragraphs 12 to 16, pages 5, 6 and 7 of the RPD record. 18 Idem, paragraphs 17 to 21, pages 7 and 8 of the RPD record. 19 Idem, paragraphs 22 to 24, pages 8 and 9 of the RPD record. 20 Idem, paragraph 25, page 9 of the RPD record. 21 Appellant's memorandum, June 20, 2014, pages 11 to 22 of the appeal record. 22 Idem, pages 18 and 19 of the appeal record. 23 Idem, page 19 of the appeal record. 24 Idem, pages 19 and 20 of the appeal record. 25 Idem, page 22 of the appeal record. 26 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 17. 27 Letter from Jean Ernest Pierre dated June 20, 2014, 2 pages. 28 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 46. 29 In Spasoja, Justice Roy ruled that an appeal before the RAD must be dealt with as an appeal and not a quasi-judicial review. He goes on to state that an error of fact must be palpable and overriding to succeed on appeal, with the understanding, furthermore, that questions of law must be analyzed on a correctness standard. 30 In Huruglica, Justice Phelan ruled that a standard of review analysis is not an appropriate analytical approach in the context of appeals before the RAD, and that one must instead look at such factors as the purpose of the appellate tribunal, the relevant statutory provisions, comparable expertise, and comparative appellate appeal regimes. After analyzing these factors, he concludes that the RAD is required to conduct a hybrid appeal, which means that it must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. That said, according to this last decision, in conducting its assessment as part of the administrative appeal, the RAD "can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a 'palpable and overriding error'." 31 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 16. In Triastcin v. Canada (Minister of Citizenship and Immigration), No. IMM-5981-13, Shore, October 15, 2014; 2014 FC 975, at paragraph 29, Justice Shore states that his colleague's decision in Alyafi summarizes, by means of a comprehensive analysis, all of the Federal Court decisions made to date with regard to the mandates of the RAD; that decision provides an overview to help arrive at a certain stare decisis in this regard. In Diarra v. Canada (Minister of Citizenship and Immigration), No. IMM-1217-14, Beaudry, October 23, 2014; 2014 FC 1009, at paragraphs 20 to 22, Justice Beaudry reiterates the three approaches identified by his colleague Justice Martineau. 32 Alyafi v. Canada (Minister of Citizenship and Immigration), No. IMM-1091-14, Martineau, October 8, 2014; 2014 FC 952, at paragraph 43. 33 Idem, at paragraphs 42 to 46. 34 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 37. 35 Idem, at paragraph 41. 36 Idem, at paragraph 55. 37 Idem, at paragraph 91. 38 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 39 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Van Son Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. 40 Bosiakali v. Canada (Minister of Citizenship and Immigration), No. IMM-4948-00, Nadon, December 14, 2001; 2001 FCT 1381, at paragraphs 13 and 14. 41 Vazquez Bizarro v. Canada (Minister of Citizenship and Immigration), No. IMM-5378-12, Noël, February 8, 2013; 2013 FC 140, at paragraph 18. 42 Basis of Claim Form (BOC Form), page 20 of the RPD record. 43 RPD Rules, SOR/2012-256, rule 9. 44 Hernandez v. Canada (Minister of Citizenship and Immigration), No. IMM-2324-12, Gagné, September 20, 2012; 2012 FC 1097, at paragraphs 32 to 34. 45 This document is reproduced on pages 157 to 161 of the RPD record. 46 This document is reproduced on pages 162 to 165 of the RPD record. 47 Idem, in response to question 7, page 163 of the RPD record. 48 Idem, in response to question 9, page 163 of the RPD record. 49 This document is reproduced on pages 29 and 30 of the RPD record. 50 Amended BOC Form, pages 24 to 27 of the RPD record. 51 In response to question 8, page 163 of the RPD record. 52 Ocampo Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, at paragraph 42. 53 Ocampo Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, at paragraph 39. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02184 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-02184 14