MB5-03090

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 : MB5-03090 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 March 11, 2016 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal François Jean Denis Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX, the appellant, who is a Haitian citizen, is appealing against the decision of the Refugee Protection Division (RPD). She is submitting that the RPD erred in assessing her credibility. II. DETERMINATION OF THE APPEAL [2] Under section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX is not a "refugee" under section 96 or a "person in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In her Basis of Claim Form (BOC Form), which she completed and signed on April 10, 2015, the appellant presents the facts as follows: - On XXXX XXXX, 2014, criminals attempted to kidnap the children of a daycare located in a school where she worked. She and two teachers intervened and shouted for help, causing the criminals to flee. The criminals looked at them and vowed to get their revenge; - She and the two teachers received anonymous calls and the criminals returned to the school to get information on them; - In January 2015, her two colleagues fled to the Dominican Republic; - She moved before leaving Haiti in XXXX 2015; - In XXXX 2015, the criminals shot at her home; - She called the police but to no avail. The authorities merely told her that the investigation was ongoing; - If she returned to Haiti, she believes that these criminals would kidnap, abuse and kill her.1 [4] Before the RPD, in addition to her BOC Form, the appellant, then known as the claimant, amended her BOC Form and filed some documents as evidence.2 B. RPD decision [5] The hearing before the RPD was held on June 19, 2015, and the decision to reject the refugee protection claim was rendered on June 30, 2015.3 [6] In its reasons for decision, the RPD identifies omissions and contradictions between the testimony rendered at the hearing and the statements made in her initial BOC Form, in the amendments to her BOC Form and in the documents that she filed as evidence. Having determined that the explanations provided were unreasonable, the RPD found that the claimant's credibility was undermined.4 [7] The RPD also found that the claimant's credibility was undermined because she did not take any steps to obtain a copy of the two complaints that the daycare administration had allegedly filed with the police. Here is what it writes in this regard: [translation] [38] Filing evidence to corroborate testimonial evidence is not always necessary. In fact, sworn testimony is presumed true unless there is reason not to believe it. However, in this case, the panel is of the opinion that these documents are necessary to establish the basis of the refugee protection claim because of the fact that it is rare to have two police officers and a justice of the peace all fail to mention the facts that led to the complaints in the reports and in the statement they respectively prepared. [39] This is the very heart of the refugee protection claim because these are the facts at the source of her fear. The claimant is an educated woman. She completed three years of professional training. She is represented by counsel who is experienced in immigration. Failure to try to obtain the two complaints filed by the daycare administration in such circumstances undermines her credibility.5 [8] Overall, the RPD did not believe the claimant's allegations regarding the attempted kidnapping that occurred on XXXX XXXX, 2014, which led to the threats against her.6 C. Grounds of appeal and decision sought [9] In her memorandum, the appellant submits that the RPD erred in assessing her credibility.7 [10] First, the appellant submits that the RPD did not ask her questions about her fear of being raped and being a victim as a member of the particular social group of women. She adds that the member focused on insignificant details and drawing hasty conclusions, was selective and did not take the time needed to analyze the record as a whole.8 [11] Then the appellant criticizes the RPD for wrongly finding that she completed her BOC Form when she was represented by counsel, which is not the case. She also submits that the RPD's finding regarding the points added in her amendments to her BOC Form does not hold water, because she is allowed to make such amendments.9 [12] Then, the appellant criticizes the RPD for not taking into account her explanation regarding the fact that she did not indicate in her BOC Form that she had moved. However, according to her, her explanation that she stayed in the same area, namely, 25 minutes away, is satisfactory.10 [13] Then, the appellant submits that there was no reason to find that her credibility was undermined for failing to mention in her testimony the same times that the justice of the peace indicates in the statement. She adds that it must be understood that she awoke with a start at night and that she thought it was 11:30 p.m. when the criminals came to her home. Furthermore, she did not verify all the details included in the statement.11 [14] The appellant then submits that the RPD relied on insignificant details when it questioned her credibility under the pretext that she failed to disclose the presence of police officers when making a report on the damage.12 [15] The appellant then submits that she cannot be criticized because the incidents on XXXX XXXX, 2014, were not mentioned in the police complaints because they were completed by the police officers and she had no choice but to sign them. She adds that the RPD should have taken into account her explanations and at least given her the benefit of the doubt in this regard.13 [16] Then, in her memorandum, the appellant explains that those in charge of the daycare had made efforts to try and secure the daycare facility, that they had advised her to take her own steps, and that they refused to give her a copy of the reports because it did not concern her. She adds that the RPD does not need the complaints from the daycare to rule on the merits of her refugee protection claim.14 [17] In conclusion, the appellant submits that she discharged her burden of establishing that she is a person in need of protection and that it is more likely than not that the criminals will execute their threats because they continued to look for her after she left Haiti, meaning that she is personally targeted by them. She adds that she is also part of the particular social group of women and that her fears in this regard are founded.15 [18] The appellant is asking the RAD to conclude that the RPD made errors and that, as a result, its decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and to substitute this determination by the one that should have been made or refer the matter to the RPD for re-determination of her refugee protection claim.16 IV. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [19] In her memorandum, the appellant requests that the RAD apply the reasonableness standard of review given that errors were made in the assessment of her credibility.17 B. A brief summary of certain Federal Court decisions [20] In Huruglica, Justice Phelan states that the RAD must conduct an independent assessment of the refugee protection claim in order to arrive at its own opinion and that it is not necessary, in order to trigger this remedial power, that the RAD must find error by the RPD on some standard of review basis.18 The Federal Court will rule on these issues shortly.19 [21] In Balde, Justice Mosley states that the different strands in the jurisprudence to date within the Federal Court have all accepted the principle that the RAD must show deference to the RPD's findings of credibility, given that the RAD does not typically hold oral hearings and is therefore at a disadvantage in comparison to the RPD.20 C. Independent assessment with a measure of deference regarding credibility [22] Relying on the Federal Court decisions rendered to date, I am of the opinion that, in this case, while conducting an independent assessment of the record, I owe deference to the RPD's findings regarding the appellant's credibility based on her testimony.21 V. ANALYSIS OF THE MERITS OF THE APPEAL [23] Having conducted an independent assessment of the record, I conclude that the appellant did not establish that she has a well-founded fear of being persecuted or that it is more likely than not that she would be subjected to a risk to her life if she had to return to live in Haiti. Here is why. A. Credibility findings [24] In terms of credibility, a measure of deference is owed to the RPD's findings, specifically with respect to the refugee protection claimant's testimony. It should be noted that "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application."22 For its part, the RPD is entitled to make findings based on implausibility, common sense and rationality.23 [25] In its reasons for decision, the RPD was very clear and meticulous in its assessment of the claimant's credibility. Its findings are based on an analysis of her testimony, including her explanations, and the evidence on the record. I am of the opinion that, in this case, before coming to its conclusions, which undermine the credibility of the claimant's essential allegations, the RPD did not err by hastily setting aside the presumption that when a person claiming refugee protection swears to the truth of certain allegations, a presumption is created that those allegations are true unless there are reasons to doubt their truthfulness.24 [26] The RPD is entitled to gauge the credibility of a person claiming refugee protection and draw negative inferences when there are disparities between her various statements: those in her BOC Form, those in other documents she completed in which she confirms that the information provided is complete, true and correct, and those in her viva voce testimony, during which she provided no satisfactory, plausible or credible explanation in the circumstances.25 [27] In her BOC Form, the appellant states that the information provided in this form is complete, true and correct, that she knew how to read French, was able to correctly read the form, clearly understand the content of this form and the content of all the attached documents, and that she knew that her statement had the same force and effect as if made under oath.26 Later, as permitted under the Refugee Protection Division Rules,27 she was able to amend this form.28 That being said, according to the case law, when the changes made to the BOC Form are minimal and are supported by plausible explanations for the corrections made, the refugee protection claimant's credibility cannot be impugned on that ground. However, the impact is different when the changes have to do with the facts themselves that are presented in the BOC Form. In that case, if the refugee protection claimant's explanations are not deemed to be satisfactory, plausible or credible, the changes in question may indeed undermine the credibility of the refugee protection claimant's narrative.29 [28] I am of the opinion that the amendments made by the claimant to her initial BOC Form were significant. In fact, in her initial BOC Form, the claimant did not mention that the criminals came to her home in the night of XXXX XXXX XXXX XXXX, 2015, to continue their attacks, that she immediately moved to XXXX with her family, that her children changed schools or that, in the night of XXXX XXXX XXXX XXXX, 2015, criminals went to where her family was living in XXXX and fired in all directions, scaring her husband and her children, who called the police, but to no avail because they did nothing. Consequently, I am of the opinion that the RPD was completely justified in asking the claimant questions about her amendments. [29] With regard to her first explanation that she wrote in her initial BOC Form that the criminals came to her home in the night of XXXX XXXX XXXX XXXX, she herself noted at the hearing before the RPD that this was not the case. With regard to her second explanation that it was because of this incident that she left her residence to go to XXXX, I am of the opinion, like the RPD, that she did not explain why she omitted this important fact in her initial BOC Form.30 [30] Furthermore, with regard to her failure to write in her initial BOC Form that, in the night of XXXX XXXX XXXX XXXX, 2015, the criminals came to XXXX, where her family was living while she was in Canada, the claimant recognized before the RPD that it was an important fact showing that her life and the lives of her family were still in danger at that time. Again, I am of the opinion that the RPD was justified in finding that this was not a reasonable explanation and that the claimant's credibility could be undermined.31 [31] Moreover, I am of the opinion that the appellant's argument-that the RPD should not have criticized her because the incidents of XXXX XXXX, 2014, were not mentioned in the complaints filed with the police-must be dismissed. [32] On this specific point, the RPD writes: [translation] [30] The clamant appealed to the authorities to assist her on three occasions: twice to the police and once to a justice of the peace. She filed as evidence a copy of the two complaints filed with the police and the statement prepared by the justice of the peace. None of these documents mention the incidents of XXXX XXXX, 2014, which are at the heart of her problems. Only the telephone threats and the criminals' visiting the claimant's home are mentioned, and there is no information on the connection between the criminals and the attempted kidnapping of the children that the claimant prevented on XXXX XXXX, 2014. [31] The panel wanted to know why these important facts, which could be used to identify the perpetrators of the crimes, were not recorded. The claimant explained that she had mentioned the attempted kidnapping as the source of her problems to each of the police officers and to the justice of the peace. She did not know why this was not mentioned in the three documents. [32] The panel is not satisfied with these explanations. It is implausible that three public officials (two police officers and one justice of the peace) on three separate occasions, failed to mention the facts at the source of the claimant's complaints, even though she claimed that she provided them each time. This is even more implausible when one considers that the two police reports were prepared in the first person. Therefore, it is the claimant who is describing the incidents in these reports. In the statement of the justice of the peace, he cites that the claimant made the statement. Moreover, the claimant signed these three documents as is, each time. The panel does not attribute any probative value to these three documents.32 [33] I carefully read the documents in question.33 It is clear that no information is included in these three documents regarding the attempted kidnapping of the children that allegedly occurred on XXXX XXXX, 2014, at the XXXX XXXX school, as the claimant states in her BOC Form.34 Moreover, I note that, in document C-10, dated XXXX XXXX, 2015, she even stated to the magistrate that she did not know why she was being persecuted because she was not a problem for anyone. In my opinion, this statement contradicts her allegations that the criminals would attack her because she prevented them from kidnapping the children from the XXXX XXXX school on XXXX XXXX, 2014. [34] In her memorandum, the appellant explains that those in charge of the daycare had made efforts to try and secure the daycare facility, that they had advised her to take her own steps, and that they refused to give her a copy of the reports because it did not concern her. This last statement does not seem to have been made before the RPD. In fact, when reading her BOC Form and the amendments to it, there is nothing that indicates or suggests such an attitude from the school or daycare authorities. In the amendments to her BOC Form, she instead states, that since XXXX XXXX, 2014, she had multiplied the efforts to get help and that management at the school had held a meeting to make other security arrangements, in particular, hiring a company to increase security at the school.35 [35] I am of the opinion that the appellant's recent statement that she was refused a copy of the reports filed with the Haitian authorities is not consistent with her own allegations. In fact, I do not understand why those in charge of the daycare or the school where there was an attempted kidnapping, which led to the departure of three employees who feared for their safety, would refuse to send the appellant a copy of the reports filed to the authorities or a simple letter. [36] As indicated previously "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application." Before the RPD or the RAD, the appellant did not file any document able to corroborate her allegations that an attempt was made to kidnap children at the XXXX XXXX school on XXXX XXXX, 2014. [37] Failing to file supporting documentation that is reasonable to expect may have an impact on a refugee protection claimant's credibility.36 It is clear from reading rule 11 of the Refugee Protection Division Rules37 that the person claiming refugee protection has a duty to provide the documents and other elements of the claim. The English version speaks more directly than the French version, stating, "The claimant must provide...."38 However, it is important to remember that, in French, the use of the present indicative is sufficient to express the imperative nature of a rule. Essentially, a lack of diligence on someone's part to obtain an important document that could have corroborated his or her testimony can undermine his or her credibility.39 [38] Consequently, I am of the opinion that, in this case, there are sufficient reasons to justify the finding that the appellant's key allegations are not credible or trustworthy. B. The fear of being persecuted as a Haitian woman [39] The case law establishes that RPD members must consider Guideline 440 in appropriate cases. It is incumbent on RPD members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding issues of violence against women.41 Although the RPD, like the RAD, must be particularly sensitive to the difficulty faced by some women when testifying who have been or who fear being victims of violence, Guideline 4 is not intended to serve as a cure for all deficiencies in the refugee protection claim or the documents submitted as evidence.42 [40] To discharge the burden of establishing that he or she meets the definition of a refugee, a refugee protection claimant must establish, on a balance of probabilities, that he or she has a reasonable subjective fear of persecution. A subjective fear of persecution is based on the assessment of the person's credibility while the objective fear is usually established by documentary evidence regarding the country conditions.43 [41] In this case, I am of the opinion that the appellant did not establish her subjective fear of being persecuted as a member of the particular social group of vulnerable Haitian women and girls. [42] First, the information included the BOC Form, the amendments to her BOC Form and the majority of the documents she filed as evidence do not directly refer to the situation of Haitian women and girls. That said, it is true that, in document C-09, the appellant states that she received a telephone call from an unknown person who promised to shoot her or kidnap her and, if necessary, rape her and her 19-year-old daughter.44 However, the RPD did not attribute any probative value to this document. I am of the opinion that, in the context of this refugee protection claim, the appellant's statement is in connection with her alleged fear relating to criminals who were after her because she allegedly prevented them from kidnapping children from the school where she worked. However, the RPD did not believe her story and I share the same point of view in this regard. [43] Second, the appellant had a passport in her possession since XXXX XXXX, 2011. She came to Canada, stayed here from September to November 2014 without filing a refugee protection claim and then returned to Haiti.45 This behaviour is not consistent with that of someone who has a well-founded fear of being persecuted as a member of the particular social group of vulnerable Haitian women and girls. [44] Finally, the appellant did not discharge her burden of proof because, in my opinion, she should have explained how-as an educated woman working and living with her family in Port-au-Prince-her personal situation corresponds to that of women who have a well-founded fear of being the victims of systematic oppression or persecution in Haiti, which she did not do. Therefore, because she failed to establish, on a balance of probabilities, her subjective fear of being persecuted as a member of the particular social group of vulnerable Haitian women and girls if she had to return to live in her country, her refugee protection claim must be rejected.46 VI. CONCLUSION [45] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX is not a "refugee" under section 96 or a "person in need of protection" under section 97 of the IRPA. [46] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette March 11, 2016 Date IRB translation Original language: French 1 The appellant's Basis of Claim Form (BOC Form) is reproduced at pages 10 to 20 of the RPD record. 2 The list is reproduced at page 97 of the RPD record. The amendments and the documents themselves are reproduced at pages 98 to 108 of the RPD record. 3 RPD reasons and decision, at pages 3 to 9 of the RPD record. 4 Idem, in paragraphs 14 to 32, pages 5 to 8 of the RPD record. 5 Idem, in paragraphs 38 and 39, at page 8 of the RPD record, citations omitted. 6 Idem, in paragraphs 40 and 41, at pages 8 and 9 of the RPD record, citations omitted. 7 Appellant's memorandum, August 23, 2015, at pages 18 to 22 of the appeal record. 8 Idem, a) Failure to question the appellant regarding section 96, at pages 18 and 19 of the appeal record. 9 Idem, b) RPD's misinterpretation, at pages 19, 20 and 21 of the appeal record. 10 Idem, at page 19 of the appeal record. 11 Idem, at page 20 of the appeal record. 12 Idem. 13 Idem, at page 21 of the appeal record. 14 Idem. 15 Idem, comments and conclusion, page 22 of the appeal record. 16 Idem. 17 Idem, at page 11 of the appeal record. 18 Huruglica v. Canada (Minister of Citizenship and Immigration), No. IMM-6362-13, Phelan, November 7, 2014; 2014 FC 799, in paragraph 47. 19 Minister of Citizenship and Immigration v. Huruglica, No. A-470-14, including the hearing that was held on September 29, 2015. 20 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, in paragraph 25. Also read to the same effect: Palden v. Canada (Minister of Citizenship and Immigration), No. IMM-4907-14, Locke, June 25, 2015; 2015 FC 787, in paragraphs 10 and 11. 21 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, in paragraph 21: "This Court has repeatedly held that RPD's conclusions on issues of credibility based on testimony clearly warrant some measure of deference." (citations omitted). 22 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, in paragraph 45. 23 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, in paragraph 10. 24 Anthonimuthu v. Canada (Minister of Citizenship and Immigration), No. IMM-1854-04, de Montigny, January 28, 2005; 2005 FC 141, in paragraph 46. 25 Zeferino v. Canada (Minister of Citizenship and Immigration), No. IMM-4058-10, Boivin, April 13, 2011; 2011 FC 456, in paragraphs 31 and 32, as cited by his colleague, the Honourable Justice Gagné in Gonzalez Hernandez v. Canada (Minister of Citizenship and Immigration), No. IMM-2324-12, Gagné, September 20, 2012; 2012 FC 1097, in paragraph 36. 26 BOC Form, at page 20 of the RPD record. 27 Refugee Protection Division Rules, SOR/2012-256, rule 9. 28 C-02 Addendum to the PIF, at pages 98 and 99 of the RPD record. 29 Hernandez v. Canada (Minister of Citizenship and Immigration), No. IMM-2324-12, Gagné, September 20, 2012; 2012 FC 1097, in paragraphs 32 to 34. 30 RPD reasons and decision, in paragraphs 15 and 16, at page 5 of the RPD record. 31 Idem, in paragraphs 15 and 16, at page 5 of the RPD record. 32 Idem, in paragraphs 30, 31 and 32, at pages 7 and 8 of the RPD record. 33 C-08, C-09 and C-10, which are reproduced at pages 106, 107 and 108 of the RPD record. 34 Appellant's BOC Form, at page 11 of the RPD record. 35 C-02, page 99 of the RPD record. 36 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, in paragraph 32 referencing the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. No. 709 (QL) in paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. No. 1278 (QL) in paragraph 6. 37 Refugee Protection Division Rules, SOR/2012-256. 38 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, in paragraph 16. 39 Idem, in paragraph 15. 40 Immigration and Refugee Board of Canada (IRB), Guideline 4 on Women Refugee Claimants Fearing Gender-Related Persecution, effective date November 13, 1996. These guidelines are accessible on the IRB website. 41 Aziza Mahamat Nour v. Canada (Minister of Citizenship and Immigration), No. IMM-8278-11, Scott, June 25, 2012; 2012 FC 805, in paragraph 37; Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, in paragraphs 55 to 58. 42 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, in paragraphs 29 to 32. 43 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM4087-08, Beaudry, April 23, 2009; 2009 FC 398, in paragraph 16. 44 C-09, at page 107 of the RPD record. 45 Appellant's passport, at pages 23 to 27 of the RPD record. IMM 5669 form, which is reproduced at pages 54 to 57 of the RPD record. 46 To meet the burden of establishing that they satisfy the definition of refugee, refugee protection claimants must establish, on a balance of probabilities, that they have a reasonable subjective fear of persecution. A subjective fear of persecution is based on the assessment of the person's credibility, while an objective fear is usually established by documentary evidence regarding the country conditions. Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM4087-08, Beaudry, April 23, 2009; 2009 FC 398, in paragraph 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB5-03090 14