MB8-08055

RAD File No. / No de dossier de la SAR : MB8-08055 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 March 14, 2019 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Claude Whalen 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated March 16, 2018, rejecting his claim for refugee protection. OVERVIEW [2] The appellant alleges that he left Haiti for Costa Rica following robberies, reprisals and death threats endured by him and his family when they were living in Archahaie and subsequently in Port-au-Prince. [3] More specifically, he alleges in his Basis of Claim Form (BOC Form) that he and his mother were attacked in 2005 by unknown individuals because his mother was a XXXX. One week later, these same individuals returned to their residence, took money and beat his mother and his sister. The following week, they beat the appellant in the street. The appellant reported the assailants to the police, who allegedly told him that they would come investigate the premises, but never did. [4] The family subsequently left Alcahaie for Port-au-Prince, where his mother continued her XXXX activities. In 2006, they were robbed by XXXX, a local criminal. This criminal also raped his niece and attacked the appellant with a knife. The appellant filed a complaint with the police, but nothing came of it. [5] In XXXX 2008, the appellant went to Costa Rica, where he obtained permanent residence. However, the appellant did not stay in Costa Rica, but went to the United States in 2011. In August 2017, the appellant went to Canada to claim refugee protection. The appellant still fears that his life would be in danger if he returned to Haiti. [6] The RPD rejected the refugee protection claim because it found that the appellant was not credible on the determinative elements of his claim due to major contradictions, inconsistencies and omissions in his account. The appellant submits that the RPD erred in the assessment of his credibility because it gave inordinate importance to the omissions in question, failed to consider all the evidence and did not sufficiently explain its implausibility findings. In conclusion, he submits that the RPD did not identify any contradictions, inconsistencies or implausibilities regarding the facts central to the refugee protection claim that would justify its negative credibility finding.1 The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal and set aside the RPD's determination, refer the matter to the RPD for re-determination or hold a new hearing before the RAD. [7] Having conducted an independent analysis in light of all the evidence on the record, including the recording of the hearing, I am of the opinion that the RPD did not err by rejecting the appellant's claim for refugee protection. [8] The appeal is dismissed. ROLE OF THE REFUGEE APPEAL DIVISION [9] The RAD must review the RPD decision and conduct its own analysis on the basis of all the evidence on the record in order to determine whether, in the light of the arguments advanced by the appellant, the RPD erred. The standard of review for findings of fact, law or mixed fact and law is correctness. In certain cases where the RPD enjoys a meaningful advantage, the RAD will show deference and explain its reasons.2 ANALYSIS The RPD did not err in finding that the appellant was not credible Allegation concerning the appellant's place of residence [10] The appellant submits that the RPD erred by contesting the problems experienced by the family in Alcahaie, as stated in his BOC Form and his testimony, because the IMM-5669 form does not state Alcahaie as place of residence. He submits that the RPD gave inordinate importance to this form, which indicates only that the appellant lived in Pétionville for the period from 1998 to 2008. [11] I agree with the RPD that such an inconsistency or omission undermines the appellant's credibility because it relates to an essential element of his refugee protection claim, namely, the place where he and his family were attacked for the first time and the city that they allegedly had to flee as a result of these incidents. I note that the appellant completed the IMM-5669 form on September 4, upon his arrival in Canada.3 It was not until September 21 that he completed his BOC Form with the help of his counsel.4 It is difficult to believe that a refugee protection claimant who submits that his life would be in danger if he returned to Haiti would fail to mention at the first opportunity such an important element in his refugee protection claim. Allegations concerning the link between the two attacks [12] The appellant submits that the RPD erred by finding that there were no links between the events in Arcahaie and those in Port-au-Prince because the appellant did not state the name of XXXX in his BOC Form in relation to the events that occurred in Alcahaie. He alleges that the RPD should have considered the appellant's testimony, which confirms that XXXX was involved in both attacks.5 [13] I cannot accept this argument. In his BOC Form, the appellant states that [translation] "unknown individuals" attacked his family in 2005 in Alcahaie. Concerning the second attack, which allegedly occurred in Pétionville in 2006, he states that the perpetrator was: [translation] "XXXX, a local criminal." As noted by the RPD, this account does not suggest a link between the two events. Contrary to the appellant's argument, the RPD considered his testimony on this point but found it lacking, given that, when asked to explain why he had failed to indicate in his BOC Form that there was a link between the incidents, the appellant simply stated that they were indeed the same criminals. [14] I am also not satisfied with the appellant's response. This inconsistency once again concerns a key aspect of his refugee protection claim, and it is difficult to explain why the appellant, who completed his BOC Form with the help of his counsel,6 would have failed to clearly link the two events. Allegations concerning the time when the appellant left Haiti [15] The appellant submits that the RPD criticized the appellant for not leaving Haiti before 2008 when he had received a death threat in 2007, whereas the appellant explained that he did not have enough money to leave earlier. [16] I note that the RPD considered the possibility that the appellant did not have the means to leave Haiti because he was still very young at the time, but that it finally found that it was more likely that he did not leave the country because he was not threatened after 2007, given that he stayed in the same residence in Port-au-Prince for one year and that nothing happened to him. [17] I find that the RPD could have further developed its reasons on this point. Nevertheless, I am of the opinion that the other contradictions and omissions set out by the RPD in its decision, as well as its uncontested findings regarding the appellant's inconsistent behaviour and the lack of forward-looking risk, are sufficient to support the rejection of the claim.7 CONCLUSION [18] Pursuant to paragraph 111(1)(a) of the IRPA, I dismiss the appeal and confirm the RPD's determination, namely, that the appellant has not established that he is a refugee or a person in need of protection pursuant to section 96 or section 97 of the Immigration and Refugee Protection Act. (signed) Bianca Eleonora Suciu Bianca Eleonora Suciu March 14, 2019 Date IRB translation Original language: French 1 Appellant's memorandum, paras. 15, 17, 20 and 21. 2 Canada (Minister of Citizenship and Immigration v. Huruglica), 2016 FCA 93. 3 Form IMM-5669, RPD record, p. 76. 4 BOC Form, question 9(a), RPD record, p. 9. 5 Appellant's memorandum, para. 17. 6 BOC Form, questions 9(a), 9(b), RPD record, p. 19. 7 RPD decision, paras. 17 and 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-08055 RAD.25.02 (September 18, 2018) Disponible en françcais 5 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