MB7-23639

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. / No de dossier de la SAR : MB7-23639 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 July 12, 2018 Date de la décision Panel Me Maria De Andrade Tribunal Counsel for the person who is the subject of the appeal Me Brigitte Objois 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 [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), namely, 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 left Haiti in XXXX 2003 for the United States. He alleged that his life was at risk in his country because of his activities on a committee he had formed with other young people from the Ganthier region in order to get youth interested in the country's affairs and, at the same time, make some money to pay for his studies. [4] The Basis of Claim Form (BOC Form) states that, on September 16, 2013, he was assaulted by criminals who were opposed to the committee's work. Since he feared for his safety, his father contacted a smuggler, who helped him flee to the United States. [5] He made an application for asylum in the United States, which was rejected. In XXXX 2013, the appellant married an American citizen. He entered Canada in the summer of 2017 because he feared the migration policies of the Trump administration. Impugned decision [6] On October 12, 2017, the RPD rejected the claim for refugee protection because the appellant had not credibly established his allegations. The RPD's decision can be summarized as follows: * The appellant's statements are inconsistent with respect to the event central to his claim, namely, the assault on September 16, 2003; * The statements made at the hearing differ from his written statements with respect to his political and community activities in Haiti. His oral and written statements are also contradictory regarding whether or not he was in regular contact with the members of his committee; * The appellant did not make the slightest effort to try to obtain documents attesting to the activities of the committee that he was a member of, even though his testimony indicates that they exist; * The appellant applied for asylum in the United States. Before the RPD, he testified that he invented a story of political persecution as he was not represented by counsel. The RPD drew a negative inference from this fact, given that his statements, the facts alleged in his asylum claim in the United States were [translation] "more or less" the same as what he alleged in Canada; * With respect to his fear of returning in relation to generalized violence and to the fact that he has lived abroad for several years and would be perceived as having money, the RPD, raising the criteria established in the case law, concluded that the appellant failed to establish that the risk he would be subjected to was not a generalized risk. Appellant's position [7] In this appeal, the following questions were submitted: * Did the RPD err in the assessment of the appellant's credibility? * Did the RPD err by concluding that the appellant failed to establish that the risk he could be subjected to should he return is not a generalized risk? I agree with these questions as proposed. SCOPE OF THE APPEAL [8] The RAD must determine whether the RPD decision is correct,1 except in cases where the credibility of the oral testimony is at issue and the RPD enjoys an advantage, in which case the RAD must assess the findings using a standard of reasonableness, modified to its specific context.2 In its independent analysis of the evidence, the RAD must decide whether the RPD committed the alleged errors. If an error of fact, law or of mixed fact and law was committed, the RAD must intervene using one of the means set out in sections 110 and 111 of the IRPA. MERITS OF THE APPEAL [9] After conducting an independent analysis of the evidence on the record, I conclude that the RPD rendered the correct decision. Since the appellant did not establish that the RPD committed an error, I see no reason to intervene. [10] A number of factors led the RPD to find that the appellant failed to credibly establish his allegations that he was assaulted on September 16, 2003, because of his community activities. Inconsistencies between the initial BOC Form and the amended BOC Form [11] More specifically, the RPD pointed out discrepancies between the initial BOC Form and the amended BOC Form with respect to when the appellant allegedly went to the hospital, what he did in the days that followed the assault and the identity of the agents of persecution. In addition, his statements at the hearing, when he was asked to explain, contradicted the statements made in the amended BOC Form regarding his hospital stay. [12] On appeal, it was submitted that the RPD should have considered, in its assessment of the appellant's testimony, that the event had occurred 15 years earlier. [13] After listening to the recording of the hearing, I conclude that the RPD did not err. [14] In the initial BOC Form, it is written: [translation] "someone who was on the scene took me to the hospital, where I stayed for two days."3 In the amended BOC Form, it is written that the appellant was unable to go to the hospital because he was known for statements made in the media. He had to spend two weeks in the back country.4 At the hearing, the appellant testified that, the day after the incident, he went to the hospital, and that, while he was there, the criminals tried to attack him.5 [15] When asked to explain the inconsistencies, the appellant answered that he did not have enough time to write his account, which is why he had made adjustments in order to be more specific.6 When confronted with the fact that in his amended BOC Form he stated that he hid in the back country for two weeks because of his popularity, he answered that there were errors in the amendments. [16] When a witness changes his statements, it gives rise to a serious doubt in the mind of the decision-maker, and the credibility of his statements is undermined. The inconsistencies are not trivial. They are numerous, and they concern the event central to his refugee protection claim. Identity of the agents of persecution [17] The RPD pointed out that, in the initial BOC Form, the appellant states the names of his agents of persecution, whereas at the hearing, he first stated that he did not know their names.7 It was only once he was confronted with the names stated in the BOC Form that he answered that he had forgotten their names.8 [18] On appeal, it was submitted that the RPD should have taken into account that he confirmed the names of his assailants when the panel confronted him with his statements in the BOC Form. [19] I agree with the RPD. Given that he took the trouble to note the names of his alleged assailants in the BOC Form, the passage of time does not explain the fact that the appellant was unable to spontaneously provide their names. Again, this gives rise to a serious doubt in the mind of the decision-maker. Other factors undermined the appellant's credibility. [20] His vague testimony when asked about the committee's activities, as well as his difficulties in providing examples of the issues that the committee had protested and taken an open stand against undermined his credibility. [21] In addition to these numerous factors is his lack of effort to try to obtain documents establishing the committee's activities, when in his testimony he stated that they do exist. His testimony that his father could not help him because he was ill is insufficient, given that his friend XXXX XXXX, a member of the committee, is in contact with his father and that his father had sent him the other documents submitted to the RPD.9 Contact with former committee members [22] The appellant provided contradictory testimony when asked about whether he was in contact with committee members. He first stated "no." Then, when confronted with the fact that, in the BOC Form, he states the contrary, the appellant adjusted his testimony.10 [23] An accumulation of inconsistencies led the RPD to conclude that the appellant did not establish a serious possibility of persecution should he return to Haiti. Lastly, I would point out that, while not determinative, the appellant left Haiti nearly 15 years ago. His father, who was actively involved in the community, continues to live in his region. When taken as a whole, these reasons lead me to conclude that the appellant failed to establish that the RPD erred. Generalized risk [24] The appellant stated that he fears returning to Haiti because he is a member of the diaspora and could be kidnapped because he would be perceived as being rich as a result of having spent many years abroad.11 The RPD cited the decision in Prophète and, taking into account the documentary evidence, concluded that the appellant failed to establish that the risk he could be subjected to should he return is different from the generalized risk that the Haitian population faces. [25] The appellant submits that the panel should have concluded that the risk he would be subjected to is not the same as the generalized risk which all Haitians face. In this regard, he submits that the RPD should have considered the fact that he has lived abroad for many years, that his father is known in the region and that he was threatened in the past and is easily recognizable.12 [26] First, the RPD did not believe the appellant's claims that he had encountered problems in the past as a result of his [translation] "community" activities. I also noted that the appellant stated that the committee had ceased its activities.13 His father, who was involved in the community, still lives in Ganthier. [27] The Federal Court has stated on different occasions that: "The perception of wealth is insufficient to sustain the position that Haitian returnees constitute a social group."14 [28] In Haiti, not only people who are perceived to be in a privileged situation are targeted by criminals. Criminality affects a large segment of the population and does not seem to make a distinction between rich people and poor people.15 [29] Tab 14.1 of the National Documentation Package (NDP) on Haiti states that the risk faced by a person returning to Haiti depends, among other things, on "the neighbourhoods that they visit or reside in, and whether the neighbourhood is prone to violence or not." It also states that "the risk of criminal victimization is not limited to members of the diaspora, but is shared by everyone who appears to be wealthy and who attracts attention to themselves." Similarly, criminality is not directed only at the wealthy. According to other information contained in Tab 14.1, "the majority of victims of crime are poor, since wealthy citizens can afford private security services to offset their higher individual risk." [30] For these reasons, I am of the opinion that the appellant failed to establish, on a balance of probabilities, that his personal situation would subject him to a risk that differs from that faced by other Haitians should he return to Haiti. CONCLUSION [31] For these reasons, I confirm the determination of the RPD to the effect 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. [32] The appeal is dismissed. Maria De Andrade Me Maria De Andrade July 12, 2018 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 X (Re), 2017 CanLII 33034 (CA IRB). 3 RPD record, page 41 4 RPD record, page 47 5 Hearing CD 1:33:45 to 1:33:55. 6 Hearing CD 1:41:35 to 1:43:05 7 Hearing CD 1:44:50 8 Hearing CD 1:44:25 to 1:46:22. 9 Hearing CD 1:18:02 to 1:30:16. 10 Hearing CD 1:28:01 to 1:30:16. 11 CD 28:11 to 28:48. 12 Appellant's memorandum, page 20. 13 Hearing CD 1:44:03 14 Ligene Cius v. Canada (Minister of Citizenship and Immigration), 2008 FC 1, Étienne, Jacques v. Canada (Minister of Citizenship and Immigration), 2007 FC 64. 15 National Documentation Package (NDP) on Haiti, July 31, 2017, Tab 7.2, Information on the security situation, including crime and kidnappings; measures taken by the government and other bodies to fight crime (June 2012-May 2014), HTI104872.FE, Immigration and Refugee Board of Canada, 11 June 2014, and Tab 14.1, Whether Haitians who have lived abroad for a long time are at risk if they return to their homeland; the kinds of risks they might face; whether their return could represent a threat to members of their families and, if so, what kind of threat their families would face and from whom (2010-2012), HTI104084.E, Immigration and Refugee Board of Canada, 29 May 2012. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-03766 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB7-23639 6 RAD.25.02 (7 février 2014) Available in English