MB8-10883

RAD File No. / No de dossier de la SAR : MB8-10883 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision April 23, 2019 Date de la décision Panel Anne Revil Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Rachel Benaroch Conseil(s) (de la/des) personne(s) 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 XXXX is a citizen of Haiti. She states that she and her husband had been members of the association XXXX XXXX XXXX XXXX XXXX XXXX XXXX d'Haïti (XXXX) [Haiti's XXXX XXXX XXXX XXXX XXXX] since June 2016. She worked there as XXXX for the 2nd constituency of Port-au-Prince, while her husband XXXX XXXX was XXXX and XXXX XXXX. [2] Starting in late May 2017, they both received telephone calls threatening to kidnap or kill them if they did not cease their activities. [3] On XXXX XXXX, 2017, some individuals opened fire on the car that was occupied by her husband, the national coordinator of the party and their driver, who was shot in the arm. [4] On XXXX XXXX, 2017, some individuals entered the room where Ms. XXXX XXXX was attending a meeting of the association and opened fire, injuring two participants. Ms. XXXX XXXX sought refuge in Les Cayes on XXXX XXXX, 2017, and left her country for the United States on XXXX XXXX, 2017. Her husband, not having a valid passport, stayed in Haiti with their children. She arrived in Canada on August 7, 2017, and claimed refugee protection, stating that she feared the supporters of the Fusion political party would try to kill her. [5] The Refugee Protection Division (RPD) rejected her refugee protection claim on April 24, 2018, on the grounds that her allegations of persecution were not credible. [6] The appellant is challenging this decision, arguing that the RPD erred in its assessment of her credibility by: [7] drawing a negative inference from the fact that she had not stated in her IMM 5669 form that she had been a member of the XXXX association, when she had submitted an amended version of this document specifying this information at the same time as her Basis of Claim Form (BOC Form); not taking into consideration the political dimension of this association in its assessment of the credibility of the threats, despite clear answers in this regard at the hearing; summarizing her testimony like it did regarding the arrival of the justice of the peace at the scene of the second attack, and finding that she had adjusted her testimony on this subject, considering that her answers regarding the fact that she had not mentioned that the attackers were members of the Fusion party in the complaints and her answers regarding the statements made to the justice of the peace were vague and unclear. [8] She adds that she did not discuss the telephone threats with the justice of the peace because she did not know who the perpetrator was and her main concern was the most recent events of XXXX XXXX, 2017, and points out that she tried to explain the anomalies in the complaints and the report by the justice of the peace. Lastly, she states that, contrary to what the panel states, she never alleged that her fear was related to her work for the ministry of youth because it is related to her membership in and activities with the XXXX. DETERMINATION [9] The appeal is dismissed. The RPD did not err in finding that Ms. XXXX XXXX allegations of persecution are not credible and that it has not been established that there is a serious possibility that she would be persecuted or subjected to a risk of harm if she were to return to Haiti. ANALYSIS [10] The Refugee Appeal Division (RAD) conducted its own analysis of the record and all the evidence, listened to the RPD hearing and applied the correctness standard of review.1 Regarding the failure to mention membership in the XXXX association in form 5669 [11] The appellant is challenging the negative finding made by the RPD because she failed to mention her membership in the XXXX association in form 5669. She argues that she corrected this omission by submitting an amended form at the same time as her BOC Form and explains that this omission resulted from the conditions under which she completed this form, at the shelter with the help of another refugee protection claimant, who did not provide her with any explanations. [12] Ms. XXXX XXXX entered Canada on XXXX XXXX, 2017, and submitted her IMM 5669 form to the Canadian government representative on September 4, 2017. The response to question 9 "What organizations have you supported, been a member of or been associated with? Include any political, social, youth or student organization, trade unions and professional associations...," indicates N/A (not applicable). [13] She filed her refugee protection claim form on September 26, 2017, along with an amended version of the first form, specifying under question 9 that she had been a member of the executive committee of the XXXX association from XXXX 2016 to XXXX 2017. [14] When asked why she had not thought to mention her membership in this association when she submitted form 5669, she first replied that it was a refugee who had completed the form, then added that the person across from her (it appears she was referring to the immigration officer who reportedly added the handwritten information) had not given her enough details. [15] However, Ms. XXXX XXXX completed five years of university studies and received a degree in management in 2016. She worked for the departmental directorate as XXXX XXXX from 2008 to 2016 and stated that, in this role, she had given numerous training sessions. Presumably, this means that she is able to understand the questions on the form, especially as she answered the other questions. Yet, she alleges that she had to leave Haiti because she fears for her life as a result of her involvement in the XXXX association. Membership in this association is therefore one of the key elements of her allegations. [16] Consequently, it is inconsistent that she did not think to mention that she had been a member when she completed and signed the form. The fact that she provided an amended version on September 26, 2017, on the advice of her lawyer does not negate this inconsistency that undermines her credibility, not with respect to her membership in this association but with respect to the fear she alleges she has for her life because of this membership. Indeed, the fact that she did not mention it suggests that this membership was not significant for her and therefore reflects on the credibility of her fear of returning to Haiti. Thus, the RPD did not err in drawing a negative inference from this omission. Regarding the telephone threats [17] Ms. XXXX XXXX is challenging the negative inference drawn by the RPD from the fact that she had not reported the threats received in the complaints that were filed. [18] Ms. XXXX XXXX states in her BOC Form that she started receiving threats of kidnapping and death by telephone at the end of May 2017 and stated at the hearing that she had received four calls, her husband had received three, and that the callers had stated they were members of the Fusion political party. When asked about the fact that the complaints filed by her husband and the justice of the peace report reiterating her statement following the events of XXXX XXXX, 2017, do not mention the telephone threats, she replied that in Haiti [translation] "it is impossible to tell the authorities everything." The panel rephrased its question to ensure that it had been understood, and Ms. XXXX XXXX then added that she did not know the identity of the callers, that her concern at that moment was what had just happened and not the threats. The RAD agrees with the RPD's opinion that these explanations are not satisfactory. Ms. XXXX XXXX or her husband filed a complaint regarding the events of XXXX XXXX and XXXX XXXX, 2017, and also called upon the justice of the peace for this most recent event. The answer given by Ms. XXXX XXXX does not explain why she or her husband did not do the same for the telephone threats or why they did not report them when, according to her statements, these events are connected and, as has been stated, they reported the other events. [19] This omission undermines the credibility of Ms. XXXX XXXX allegations regarding the existence of these telephone threats. Regarding the events of XXXX XXXX, 2017 [20] The appellant rightly points out that she stated she had left the scene after the events, while the RPD wrongly stated that she indicated she had stayed at the scene. [21] The appellant is contesting the RPD's statement that her testimony evolved with respect to where she was when the justice of the peace arrived at the scene. The RAD notes, after listening to the questions asked by the RPD and the appellant's answers, that her testimony, while it became clearer as the questions went along, cannot be considered to have evolved on this point, contrary to what the RPD stated. [22] However, the RAD, like the RPD, notes that the justice of the peace report, written the day after the events, states that the injured were at the scene, which contradicts the appellant's statements that the injured had left for the hospital, which is more credible in that it would be difficult to understand why the injured would still be at the scene the day after the events. The appellant was unable to explain this error by the justice of the peace or why she had not noticed it. [23] In addition, the appellant stated that the complaint was filed by her husband and that the justice of the peace arrived at the scene of the events with her husband the next day, and that she met up with them there. An excerpt from the registry minutes states [translation] "At the verbal request of XXXX XXXX XXXX...residing and domiciled in XXXX XXXX XXXX, XXXX Street, that we go to the abovementioned address," which is not consistent with the statements. Ms. XXXX XXXX did not explain why it was stated that it was at her request. Regarding her address, she confirmed that the location of the meeting, where the attack occurred, was XXXX Street and that she lived on XXXX Street. She explained the confusion by the fact that the two streets are close to one another and that as the meeting place belonged to one of the members of the association, it was like the space belonged to them. [24] Her testimony therefore evolved when she tried, in vain, to explain the inconsistencies in the justice of the peace report, which undermines her allegations regarding the attack on XXXX XXXX, 2017. [25] Furthermore, the RPD was correct in finding that the justice of the peace report had no probative value given these errors. Regarding the complaints [26] The RPD refused to give any weight to the complaints filed by the appellant's husband. It correctly held that these complaints, one for the events of XXXX XXXX, 2017, and the other for the events of XXXX XXXX, 2017, although prepared with the assistance of a lawyer, did not include any details regarding where the events took place or the name and contact information of the individuals injured. Due to their lack of precision, they are unlikely to support the allegations regarding these events. In addition, the appellant is not clearly challenging the RPD's finding that these documents have no probative value. Regarding the contradiction with respect to her husband's location [27] The appellant is not challenging the negative inference drawn by the RPD from the contradiction between her answers regarding her husband's location. [28] At the start of the hearing, she stated that her husband and their children were currently living with her mother in Les Cayes. Then, she testified that members of her family had received calls on the Friday before the hearing informing them that they knew where her husband was and that they were going to go kill him. When asked what he did to protect himself, she stated that he went to hide in the mountains and that the children stayed at her mother's home. She tried to explain this contradiction, claiming that the location where he hid was still in the region of Les Cayes, but this attempt is not relevant in that she did not explain why she stated that he was living at her mother's home with the children and not alone in the mountains. This undermines the credibility of these new threats. It is also noted that she did not provide any new evidence regarding her husband's situation, even though her account indicates that he received the same threats she did and was threatened again after she left, which undermines the credibility of her allegations. Regarding the Fusion party's motivations [29] The appellant criticizes the RPD for not having understood the political dimension of her involvement and for having wrongly inferred that her explanations regarding why the Fusion party was after her were not clear. [30] The RPD repeatedly asked Ms. XXXX XXXX how the activity of the XXXX association could hinder the Fusion party. Ms. XXXX XXXX had first stated, at the start of the hearing, that the objective of this association, which was founded in XXXX 2016, was to work in the environment and reforest Port-au Prince. She then stated that it also had a political objective, namely, to prepare other members so that they are able to represent their beliefs because parliamentarians cannot be trusted. She also stated that the association had written to the President of the Republic and that the Fusion party must fear that this organization will take away some of its sympathizers. In response to the question as to why their activities could hinder the Fusion party to the point that they want to kill them, she stated that as soon as you have a vision a divide is created between the parties. The RAD is of the opinion that this response is simplistic, that Ms. XXXX XXXX did not explain what political agenda would threaten the other parties, when she stated that the ideas for [translation] "advancing the association" were those of her and her husband. In addition, she explained that, in the neighbourhood, there were several parties, several trends, and that it was impossible to know which one was in control. Lastly, she stated that the association had 242 members. Thus, it is not very credible that this association poses such a threat to the supporters of the Fusion party that they are targeting its representatives, which undermines Ms. XXXX XXXX allegations. Regarding the RPD's finding with respect to Ms. XXXX XXXX involvement with youth [31] The RAD agrees with the appellant regarding the fact that she never alleged that her fear was related to her work for the ministry of justice, but solely because of her activities with the XXXX association. The RPD therefore erred in assessing her subjective fear on this ground. [32] However, this error is not determinative to the appellant's credibility. Given the previous developments, on a balance of probabilities, the appellant's allegations regarding the threats received and the attack on XXXX XXXX, 2017, have not been established. Conclusion of the analysis [33] Considering this evidence, Ms. XXXX XXXX allegations regarding the threats she received and the attack on XXXX XXXX, 2017, have not been established. Thus, she did not establish that she would face a serious possibility of persecution or a risk of harm if she were to return to Haiti. The RPD's decision is therefore correct. FINAL CONCLUSION [34] The RAD dismisses the appeal and confirms the determination of the RPD that XXXX XXXX XXXX XXXX is neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act. (signed) Anne Revil Anne Revil April 23, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, March 29, 2016; 2016 FCA 93. Rozas del Solar v. Canada (Minister of Citizenship and Immigration), November 14, 2018; 2018 FC 1145. --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-10883 RAD.25.02 (September 18, 2018) Disponible en français 8 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 (September 18, 2018) Disponible en français