MB7-23504

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 : MB7-23504 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 10, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Claude Whalen Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] The appellant, XXXX XXXX XXXX XXXX, a Haitian citizen, is appealing the decision of the Refugee Protection Division (RPD). He has submitted no evidence and is leaving it to the panel to determine whether or not a hearing is required. He argues that the RPD erred regarding XXXX supporters, who continue to commit acts of violence to this day. Although he acknowledges some omissions, he argues that they are insufficient to draw a negative finding about his credibility. [2] Pursuant to subsection 111(1) of the IRPA, the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD. I. BACKGROUND A. The alleged facts [3] In his Basis of Claim Form (BOC Form), the appellant states that, during the 2000 municipal election, his brother ran as a candidate against the XXXX XXXX and that he was his XXXX. He also states that, during a political rally held on XXXX XXXX, 2000, XXXX XXXX XXXX XXXX got out and fired into the air to scare them and that the participants at the meeting fled. XXXX XXXX who were looking for him went to his home and beat his wife. [4] In his BOC Form, he states that he went to the Dominican Republic in late XXXX 2000. He then went to the United States in XXXX 2000, where he claimed asylum, but his claim was rejected. He remained in the United States as a temporary resident. He also states that, on XXXX XXXX, 2017, he returned to Haiti for a week to visit his ailing father and that the XXXX people still pose a threat to him. [5] In August 2017, he came to Canada to claim refugee protection.1 B. RPD decision [6] The hearing before the RPD was held on October 19, 2017, and the decision to reject the refugee protection claim was rendered orally toward the end of the hearing. [7] The RPD ruled that there were a number of credibility issues with respect to the claimant's written account; issues that were not satisfactorily explained. The panel also indicated that there were serious omissions and that the claimant's testimony lacked spontaneity regarding crucial and major elements of his claim for refugee protection. For example, the claimant stated at the hearing that he feared the XXXX XXXX in power in Haiti; however, it has not been in power for a number of years now. The panel also provided as another example: in form IMM 5669, the claimant did not indicate that he was a member of the XXXX XXXX, yet in his BOC Form, he states that he was one of its XXXX XXXX. The panel provided another example of an omission, namely, that he does not mention in his BOC Form that in XXXX 2017 police officers and armed civilians allegedly went to his home and fired shots into the yard to go after him, knowing that he had returned.2 II. GROUNDS OF APPEAL AND DECISION SOUGHT A. Errors allegedly committed by the RPD [8] In his memorandum, the appellant argues that the RPD erred regarding the XXXX XXXX who continue to commit acts of violence to this day. Although he acknowledges some omissions, he maintains that they are insufficient to draw a negative finding regarding his credibility. [9] In conclusion, the appellant requested that the Court [sic] allow his appeal, set aside the determination and allow his claim for refugee protection, or refer the matter to the RPD for re-determination or hold a new hearing before the RAD.3 B. Request for a hearing before the RAD [10] In his memorandum, the appellant presents no new evidence, but he leaves it to the RAD's discretion as to whether or not a hearing needs to be held.4 [11] According to the case law, the onus is on the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been met.5 One of the determinative criteria is that one of the pieces of evidence presented on appeal is deemed admissible. However, the appellant did not present any evidence. There is therefore no new documentary evidence to analyze in a hearing before the RAD.6 III. APPLICABLE STANDARD OF REVIEW AND ANALYSIS OF THE APPEAL [12] According to the jurisprudence, after conducting its own analysis of the record, the RAD reviews RPD decisions by applying the correctness standard, except where the RPD enjoys a meaningful advantage in assessing credibility or the weight to be granted to oral testimony given before it, in which case the RAD must apply the reasonableness standard of review modified to its particular context.7 Consequently, the RAD's role is not to carry out a de novo consideration of the refugee protection claim, but rather to judge whether, as claimed by the appellant, the RPD actually did err.8 [13] Having conducted my own analysis of the record, including listening to the recording of the hearing,9 I am of the opinion that the RPD did not enjoy a meaningful advantage and that the standard of correctness must be applied here. Having applied this standard, I am of the opinion that the appellant's arguments are unfounded and that the RPD did not err in its assessment of his credibility. Here are my reasons. [14] In this case, the RPD identified major omissions and contradictions that go directly to the heart of his fear of returning to live in Haiti. [15] There is no mention in his BOC Form of the alleged XXXX 2017 incident, whereby plainclothes officials and police officers allegedly went to his home, knowing that he was there, and fired some shots. When asked to explain the omission at the RPD hearing, the appellant replied that he thought he had mentioned it.10 I agree with the RPD11 that this explanation is not reasonable and that it is important, considering that this incident is allegedly at the centre of his current fear of returning to live in Haiti after 17 years spent living in the United States, where his claim for asylum submitted in 2000 was rejected the following year. Consequently, this omission seriously undermines his credibility. [16] The RPD also identified a major contradiction, namely that the claimant stated at the hearing that he fears the XXXX XXXX; however, it has not been in power in Haiti for a number of years. It also identified an omission, in that the claimant did not indicate in the IMM 5669 form that he is a member of the OPB organization.12 [17] In his memorandum, the appellant argues that, despite his testimony before the RPD, it is not the XXXX XXXX that he fears, since that party is no longer in power; rather, it is the XXXX XXXX, who still engage in acts of violence to this day. He also argues that the RPD erred when it concluded that the XXXX do not persecute people who supported the XXXX in the past because, according to the documentary evidence, XXXX supporters belong to criminalized groups and engage in violence.13 [18] In my opinion, these arguments are unfounded. In fact, during his testimony before the RPD, the appellant clearly stated that he feared the XXXX XXXX. When asked to explain himself, since the documentary evidence very clearly indicates that this party is no longer in power in his country and has not been for a number of years, he then stated that he left Haiti in 200014 while the country was under XXXX rule. I am of the opinion that this explanation is not reasonable. [19] When asked to explain why, in XXXX 2017, police officers and plainclothes officials allegedly went to his home and fired some shots, he simply replied that he thought that it was because they knew that he was there since this type of thing had not happened while he was absent. He added that he did not know why these people were still after him after 17 years.15 In my opinion, on precisely this point, the appellant simply did not establish that, in fact, in XXXX 2017, police officers and plainclothes officials would have come after him because of his political activities dating back to 2000. Furthermore, the appellant did not submit as evidence any documents from witnesses to that incident, which could have corroborated his statements to that effect. Failing to submit supporting evidence that could reasonably be expected could undermine the refugee claimant's credibility.16 Rule 11 of the Refugee Protection Division Rules17 clearly states that the refugee protection claimant must provide documents and other elements to support their refugee protection claim. Having conducted my own analysis of the record, I am of the opinion that the appellant's failure to ask witnesses to this incident to provide a document to confirm his statements on this matter also undermines his credibility. [20] Finally, when questioned at the RPD hearing regarding the failure to mention in form IMM 5669 that he is a member of the OPB, the appellant simply replied that he did not remember.18 In my opinion, this explanation is not reasonable. [21] The onus is on the person claiming refugee protection to establish, on a balance of probabilities, the facts upon which they are basing their claim.19 The RPD and the RAD can make findings based on implausibilities, inconsistencies or omissions. The entirety of evidence must be assessed, with RPD and RAD members applying common sense and human experience.20 An accumulation of contradictions and omissions can deliver a fatal blow to a refugee protection claimant's credibility.21 [22] In this case, I have read the RPD decision, listened to the recording of the RPD hearing and considered all the arguments put forward on appeal, and I am of the opinion that the correct decision was to reject the refugee protection claim since these omissions and contradictions dealt a fatal blow to his credibility. [23] I want to point out that the appellant's status in the United States, even if he could justify why he was able to wait so long before coming to Canada, is not a determinative issue. CONCLUSION [24] For these reasons, I confirm the RPD determination that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96, or a "person in need of protection" within the meaning of section 97 of the IRPA. [25] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette July 10, 2018 Date IRB translation Original language: French 1 Appellant's Basis of Claim Form (BOC Form) is reproduced at pages 9 to 19 of the RPD record. 2 RPD Notice of Decision and Oral Reasons for Decision, October 19, 2017, pages 1 to 8 of the RPD record. 3 Appellant's Memorandum, December 15, 2017, pages 8 to 12 of the appeal record. 4 Ibid., paragraphs 23 and 24, page 11 of the appeal record. 5 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 6 Borubaev v. Canada (Minister of Citizenship and Immigration), No. IMM-3026-17, Diner, February 5, 2018; 2018 FC 125, paragraph 21. 7 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. X (Re), 2017 CanLII 33034 (CA IRB). 8 Canada (Minister of Citizenship and Immigration) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 9 Recording of the RPD hearing on October 19, 2017, 00:01 to 52:00. 10 Ibid., 10:00 to 11:50. 11 RPD Notice of Decision and Oral Reasons for Decision, pages 6 and 7 of the RPD record. 12 Ibid., pages 5 to 6 of the RPD record 13 Appellant's Memorandum, paragraphs 8 to 11, pages 9 to 10 of the appeal record. 14 Recording of the hearing, 02:40 to 04:55. 15 Ibid, 10:00 to 11:50. 16 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, paragraph 32. 17 Refugee Protection Division Rules, SOR/2012-256. 18 Recording of the hearing, 18:00 to 19:35. 19 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, paragraph 45. 20 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 21 Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, paragraph 42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02904 RAD.28.07 (2015.06.02) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-23504 7