MB8-10882

RAD File No. / No de dossier de la SAR : MB8-10882 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 11, 2019 Date de la décision Panel Anne Revil Tribunal Counsel for the person(s) who is(are) the subject of the appeal Me Darius Constantin 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. [2] His Basis of Claim Form (BOC Form) states that he took part in a meeting of the political group "XXXX XXXX XXXX" on December 17, 2015, and that he was followed after the meeting by three individuals on a motorcycle wearing balaclavas, two of whom were wearing a PHTK party shirt. [3] He escaped through the back of his house located in XXXX XXXX XXXX, Haiti while the three individuals vandalized his house. [4] He hid for thirty days in XXXX and then spent another thirty days at his parents' home in XXXX. Then, still fearing for his life, he left for the United States, for which he had a visa, on XXXX XXXX, 2016. He arrived in Canada on August 14, 2017, and claimed refugee protection. [5] The RPD rejected this claim because his allegations were not credible, due to contradictions between his BOC Form and Form 5669. The RPD also considered the fact that the appellant's failure to claim asylum during his 18-month stay in the United States was not consistent with the behaviour of someone fearing for his life. [6] The appellant is challenging that decision for the following reasons: [7] - it is unreasonable to require that he mention in his form the addresses where he sought refuge, [8] - while he forgot to mention the indirect threats received through his friends during his testimony, he rectified his error afterwards without it constituting an adjustment to his testimony, [9] - he acknowledges that he failed to mention that he had consulted a friend who is a police officer in his BOC Form, but this omission does not concern an important event, [10] - he reasonably could have chosen to answer question 9 in Form 5669 with the date when he applied for membership to the party or with the date when he became a member, [11] - he did everything he could to claim asylum in the United States by mandating someone he trusted. DETERMINATION [12] The appeal is dismissed. [13] The main issues are the following: * Is Mr. XXXX credible? * Would Mr. XXXX face a serious possibility of persecution or a risk of harm if he were to return to Haiti? ANALYSIS The RAD carried out its own analysis of the record and all of the evidence, listened to the recording of the hearing before the RPD and applied the correctness standard of review.1 Mr. XXXX credibility Failure to file an asylum claim in the United States [14] While the RPD drew a negative inference from Mr. XXXX failure to file a claim for asylum in the United States, the RAD shares the opinion of the appellant that his explanation is reasonable. Indeed, he explained that he had trusted someone who was working for an organization and who had put his doubts to rest when he was worrying about not having received an answer on his asylum claim. Therefore, the RPD erred in drawing a negative inference. Failure to mention calling on a police officer friend in his Basis of Claim Form [15] Mr. XXXX criticizes the RPD for drawing a negative inference from his failure to mention that he had consulted a friend who is a police officer in his BOC Form. While he stated at the hearing that he had called a police officer friend of his who came with colleagues to his home after the events of XXXX XXXX, 2015, and did not see anyone, he does not mention it in his BOC Form. He does, on the other hand, mention that the police are corrupt and that he does not trust the Haitian authorities to protect him. It may initially seem contradictory to call on a friend who is a police officer and to believe that the police are corrupt. Mr. XXXX explanation that he called on a police officer, who is also his friend, is not satisfactory. But most importantly, as the RPD pointed out, Mr. XXXX only specified this when the RPD asked why he had not gone to the police instead of the justice of the peace, and he then replied that he had called a friend who is a police officer before contacting his lawyer, who had called on a justice of the peace himself. The RAD shares the opinion of the RPD that Mr. XXXX adapted his testimony according to the questions and contradictions put to him. [16] The RPD therefore did not err in drawing a negative inference. Threats received through his friends [17] The RPD drew a negative inference about the credibility of the appellant from the fact that he answered no to the question about whether he had been [translation] "mistreated" after the incident of XXXX XXXX, 2015, whereas he stated in his BOC Form2 that he had been threatened by these individuals before his departure. [18] However, the recording of the hearing shows that Mr. XXXX was asked if he had been mistreated and that, when confronted with the contradiction between his negative reply and his BOC Form, Mr. XXXX explained that he believed the panel was questioning him about physical threats only. It is true that the term [translation] "mistreatment" is ambiguous and, therefore, Mr. XXXX explanation is reasonable. However, when the panel asked him to provide details about these threats, Mr. XXXX stated that individuals had asked his friends in his former neighbourhood where XXXX the engineer was. These questions are not in themselves threats and Mr. XXXX failed to provide additional elements in his testimony and BOC Form to support this allegation of a threat. [19] Therefore, it is not established that he was threatened after XXXX XXXX, 2015, which undermines his credibility. The RPD was therefore correct in drawing a negative inference, for other reasons, of course, in connection with the alleged threats. Date of joining the "XXXX XXXX XXXX" party [20] Mr. XXXX criticizes the RPD for drawing a negative inference from the discrepancy between the date of joining the "XXXX XXXX XXXX" party provided in Form 5669 (XXXX 2015) and the one he provided at the hearing (March 2015). The appellant explained at the hearing that he had started as an activist for that party in January 2015 and that it was after his presentation in March 2015 that he became a member. This contradiction, though real, does not in itself undermine the appellant's credibility. Locations where Mr. XXXX hid after XXXX XXXX, 2015 [21] The RPD drew a negative inference from Mr. XXXX failure to provide the addresses of the two places where he hid between the alleged attack and his departure from his country in Form 5669, which the appellant criticizes. Question 12 of this form states, "List all addresses where you have lived since your 18th birthday or the past 10 years, whichever is most recent." Mr. XXXX did not in fact indicate those two addresses there. However, his explanation that he had not understood that he also had to mention these addresses, which were not official residences and where he only lived for a short period of time (30 days), is satisfactory. The RPD therefore erred in drawing a negative inference regarding the appellant's credibility. [22] Mr. XXXX stated in his BOC Form that he hid in XXXX after the events and that, still feeling he was in danger, he finally left the country. He also indicated at the hearing that he stayed in XXXX afterwards for an equivalent amount of time (30 days) before leaving the country. In his Form 5669, he does not mention either of these addresses. Since it is an omission in an answer containing his addresses, it is of no consequence. More problematic, however, is the failure to mention in his BOC Form, where he states his allegations, that he hid at his parents' home before deciding to leave the country, whereas he stated at the hearing that he had spent 30 days there and that it was during his stay that his parents convinced him to leave. [23] The RPD did not confront him with the contradiction between his BOC Form and his testimony at the hearing about his stay in XXXX. However, Mr. XXXX was aware of his answers in his BOC Form at the time of his hearing. The RAD can therefore draw a negative inference from this contradiction concerning one of his allegations without it being necessary for him to have been confronted with this contradiction. [24] Mr. XXXX credibility with regard to the alleged events is therefore undermined; however, it is not possible to assert, as the RPD did, that he is not credible. [25] In any case, the onus is on him to demonstrate that he would face a serious possibility of persecution or a risk of harm if he were to return to Haiti. Serious possibility of persecution and risk of harm if he returns to Haiti [26] Mr. XXXX stated during the hearing that he feared that supporters of the PHTK would kill him if he returned. He points out in his memorandum of appeal that he fears threats to his life if he returns to Haiti. [27] However, he did not elaborate on this fear or explain the risk he would face upon return. [28] Considering that he himself stated in Form 5669 that his involvement as an activist or supporter of the "XXXX XXXX XXXX" party stopped in December 2015, it is not particularly credible that the PHTK party supporters would come after him if he were to return over three years after the fact. [29] Furthermore, he did not allege that any threats have been made against his family still in Haiti or that these people have come looking for him since his departure. [30] Lastly, the documentary evidence3 reports minor incidents between the members of this party and law enforcement and the death of one activist by a bullet attributed to-and disputed by-the police. The evidence does not refer to any threats against supporters of that party by PHTK party supporters and does not establish an objective basis for the appellant's subjective fear or alleged risk. [31] Accordingly, Mr. XXXX has failed to establish that he faces a serious possibility of persecution or, on a balance of probabilities, a threat to his life or a risk of cruel and unusual punishment or treatment if he returns to Haiti. Conclusion of the analysis [32] The above-mentioned developments indicate that, even though the appellant's credibility is undermined, the RPD erred in finding that he was not credible. However, he has not established that he faces a serious possibility of persecution or, on a balance of probabilities, a threat to his life or a risk of cruel and unusual punishment or treatment if he returns to Haiti. The RPD's decision to reject his claim is therefore correct. FINAL CONCLUSION [33] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD dismisses the appeal and confirms the determination of the RPD that XXXX XXXX XXXX XXXX is not a Convention refugee or a person in need of protection under sections 96 and 97 of the IRPA. (signed) Anne Revil Anne Revil April 11, 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. 2 Question 2 (b). 3 National Documentation Package, Haiti, March 29, 2019, Tab 4.19: Haiti: The Pitit Dessalines [Pitit Desalin] political platform, including its establishment, structure, founding members and leaders, as well as its program; whether the platform issues membership cards; whether the party's candidates ran in municipal, legislative and presidential elections and, if applicable, those who were elected; the treatment of its members by the authorities, Immigration and Refugee Board of Canada. July 22, 2016. HTI105579.FE. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-10882 RAD.25.02 (September 18, 2018) Disponible en français 6 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