MB8-23301

RAD File No. / No de dossier de la SAR : MB8-23301 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 / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 24, 2019 Date de la décision Panel Me Charles Gauthier Tribunal Counsel for the person who is the subject of the appeal Me Sabine Venturelli Conseil de la personne 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 (the appellant), a citizen of Haiti, is appealing against a decision of the Refugee Protection Division (RPD) dated September 26, 2018. [2] The appellant is a demobilized former solider and worked as an electronics technician for the Haitian national police. He is claiming refugee protection in Canada under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA) and alleges fearing for his own safety because of death threats he received from a former neighbour called XXXX, and because of an individual named XXXX XXXX, with whom he had a civil dispute and who is now seeking revenge. [3] Before the RPD, the determinative issues, based on two agents of persecution involved at different times, are: a) the prospective risk relating to XXXX, and b) the generalized risk relating to XXXX XXXX. [4] Before the Refugee Appeal Division (RAD), the determinative issues are: a) the prospective risk relating to XXXX, and b) the credibility relating to XXXX XXXX. DETERMINATION [5] The RAD confirms the RPD's determination. STANDARD OF REVIEW [6] The role of the RAD is to review RPD decisions by applying a correctness standard of review after carrying out its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings in the assessment of the credibility or weight to be given to the oral evidence it hears. In cases where it enjoys a meaningful advantage, the RAD then owes deference to the RPD's findings, as determined in Huruglica.1 In this particular case, the correctness standard of review will be used. Appellant's arguments [7] The appellant criticizes the RPD for not considering the evidence as a whole and for questioning him solely to assess his credibility. [8] He argues that the RPD erred by penalizing him for not leaving the country at the first opportunity and by drawing a negative inference from this fact, that he qualifies as isolated, instead of considering the evidence as a whole. [9] The appellant alleges a breach of the rules of procedural fairness and natural justice because the RPD did not ask questions relating to the determination and the knowledge of the agents of persecution and drew a negative inference from the fact that the appellant did not leave the country at the first opportunity. [10] He also criticizes the RPD for analyzing only the years 2013, 2014 and 2015 regarding XXXX, without taking into account the escalation of the intimidation, the threats and the harassment. [11] The appellant criticizes the RPD for not considering the generalized criminality and for underestimating the seriousness of the situation, referring to the prevailing generalized oppression within the country. [12] Finally, the appellant criticizes the RPD for not establishing relevant arguments, for being expeditious in its analysis of the evidence by concluding that there is no risk if he were to return to Haiti and for only considering documents and evidence that support its own conclusions, based on minor implausibilities. ANALYSIS Relating to procedural fairness [13] The appellant argues that the RPD breached its duty of procedural fairness and natural justice by asking no questions about the identification of the appellant's agents of persecution or the events that occurred between 2001 and 2013. [14] On this, the panel had the opportunity to read the documentary evidence, including what the appellant submitted, and his Basis of Claim Form (BOC Form) and to listen to the audio recording. The panel noted that the appellant had the opportunity to establish all the evidence he could and that his counsel had the chance to ask questions before making submissions. The appellant was also granted the opportunity to add any elements that were not addressed during the hearing. The appellant's counsel did not take the opportunity to ask questions, and the appellant himself did not add any clarification. [15] The analysis of the decision and of the process before the RPD does not show a breach of duty. The appellant was provided with an independent, impartial and objective decision-maker and the RPD gave the appellant many opportunities to express his fears, their basis and their origins. Entirety of the evidence Relating to XXXX [16] The evidence shows that the appellant fears XXXX, because XXXX allegedly criticized him for being a former soldier, claimed that they needed to get rid of former soldiers, and told him that the location of his house was [translation] "his zone" and that there was no space for the appellant in [translation] "his zone." [17] On this, the appellant claims that he complained to the authorities in 2001 and that a justice of the peace told XXXX that he was wrong and that he had to leave the appellant alone. This intervention worked and the appellant and his family were left alone from 2001 to 2004. [18] The appellant claims that XXXX behaviour started again when former President Jean-Bertrand Aristide returned, around the early 2000s. At that time, XXXX allegedly held daily political meetings in the street in front of the appellant's house. [19] When questioned about how often he was targeted by XXXX, the appellant mentioned four specific times, the most recent of which being in 2011, when the appellant was changing a tire on his car. XXXX then allegedly hit the appellant's car, knocking it off the jack it was resting on. XXXX did not apologize and the situation did not escalate. This was the appellant's last reported interaction with XXXX. [20] As for the evidence concerning XXXX, it establishes that the appellant was transferred to XXXX in 2008, that his family joined him in 2009 and that his family moved back to XXXX in 2011. The appellant allegedly stayed in XXXX to work. The full evidence does not support a reasonable fear of persecution or the existence, on a balance of probabilities, of a personal risk to his life or a risk of cruel and unusual treatment or punishment. Moreover, as claimed by the appellant, XXXX is around 180 km from XXXX, where his house is located. [21] Contrary to the appellant's claim, the prospective risk assessment is done from the date of the most recent event, which, in this case, is 2011. Between 2011 and the date the appellant left for Canada, in August 2017, about six years passed without any issues concerning XXXX, other than the fact that he was cautious when visiting his wife and children. No threats, actions or reprisals against his family are mentioned. [22] To justify the fact that his wife and children still live in XXXX "zone" despite his fear of this person, the appellant claims that his wife never leaves the house, that she does not work, that she is scared and that the family has built a system through which the children are accompanied to school by a neighbour, while another one picks them up after school. This has allegedly been going on since 2001. While it was not at the heart of the refugee protection claim, this answer is completely absurd and undermines the appellant's credibility concerning the risk that XXXX represents. [23] Moreover, it was established that the appellant was able to travel to the Dominican Republic in 2013 and to the United States in 2014 and 2015. The appellant never took these opportunities to seek refugee status in these places; nor did he apply for asylum in the United States before coming to Canada, when he took an airplane to New York City and travelled by land to Canada. Returning to the country of origin and not claiming refugee protection at the first opportunity can have a negative impact on the credibility of a refugee protection claimant. [24] Even though the appellant argues that this is an isolated fact that should not be held against him, these are in fact three isolated facts which, when put together, along with his return to his country of origin and failure toapply for asylum before arriving to Canada, show that the appellant did not fear for his personal safety because of XXXX up to 2017. [25] Even in the appellant's BOC Form, it is written in paragraph 14 that he [translation] "stayed in XXXX for [his] safety." Taken together, all of these elements show that the appellant has neither a reasonable fear of persecution nor, on a balance of probability, a personal risk to life or a risk of cruel and unusual treatment or punishment relating to XXXX. Relating to XXXX XXXX [26] The evidence establishes that XXXX XXXX is a young man who was 21 years old in 2015 and was close enough to the appellant that he tried to help him by buying him a motorcycle in August 2015, leasing it out to him so he could eventually own it. According to a verbal contract between the two parties, XXXX would pay the appellant 200 gourdes per day for the lease. [27] Following the default of payment on XXXX XXXX, 2015, the appellant went to the judicial police department to fill a report. The appellant went before the public prosecutor in XXXX 2015 and the government commissioner returned the motorcycle keys to the appellant. [28] Immediately after this hearing, XXXX XXXX allegedly attempted to take the keys from the appellant with a machete but was stopped by two friends of the appellant, Mr. XXXX and Mr. XXXX. However, in his BOC Form, the appellant claims that XXXX tried to kill him several times. [29] When questioned by the RPD member as to whether he had other issues with XXXX, the appellant only mentioned the XXXX XXXX, 2017, event in which XXXX and his associates waited in the reeds to kill him. [30] When asked about why XXXX XXXX would still be after him simply because of a motorcycle, the appellant answered that he had no issues with XXXX, but that he was still angry that the appellant had sold the motorcycle, that he was watching him and that he wanted to kill him. [31] When asked about why XXXX would want to kill him, he explained that the motorcycle had been at his home for a year and that XXXX was hoping that the appellant would give it back to him. The appellant then claimed that the motorcycle was sold after a year. [32] When asked whether XXXX would still be after him if he returned to Haiti now that the motorcycle has been sold, the appellant once again claimed that XXXX wants to make him pay. [33] To understand the situation clearly, the RPD once again asked if XXXX would still be after him if he returned to Haiti. In lieu of an answer, the appellant claimed that XXXX always stated that there was no justice with former soldiers and that [translation] "wherever he goes, I don't go." When the RPD asked him to clarify, the appellant added: [translation] "Since he is angry because of the motorcycle and since they always tend to make trouble for former soldiers, they are always there." [34] As this still lacked precision, the panel asked the appellant to explain what XXXX would do to him if he were to return to Haiti. It was only at that point that he claimed that XXXX was a criminal and that he did not know. He could lynch, abuse, torture, inflict cruel treatment or even kill him. [35] When asked about what XXXX XXXX did for a living, the appellant claimed that XXXX was a part of a group of young people who pretended to be priests, practised voodoo, killed people, decapitated them and buried their bodies. [36] The RPD concluded that the appellant's explanation concerning the fact that he did not mention this element of the XXXX XXXX story was unreasonable, and that if XXXX XXXX was involved in such serious crimes, to the point where it increased the appellant's fear, it is reasonable to expect it to be mentioned in his account. [37] For the panel, this answer is completely unreasonable, and the omission is important enough to undermine the appellant's credibility on the possibility of XXXX XXXX being a member of a criminal group that kills people, decapitates them and buries their bodies. [38] On top of that, the appellant was helped by a counsel during the preparation of his BOC Form. If it had been accurate, this fact would have been at the heart of his claim. It was only after multiple questions concerning what XXXX XXXX would do to him once the motorcycle was sold that the appellant mentioned the situation. [39] The panel does not believe the appellant's version of the story. Such an omission of a fact that should have been at the heart of the refugee protection claim and the time it took to mention it during the hearing undermine the credibility of the risk XXXX XXXX would present upon the appellant's return to Haiti. There has indeed been a civil dispute between the parties, but nothing beyond that. Generalized crime [40] As for the appellant's explanations before the RPD should he have to return to Haiti, it inevitably concerns the general situation in Haiti, which does not fall within the definition in paragraph 97(1)(b) of the IRPA. The appellant did not mention a personal risk. His answers suggest that all citizens are in danger, wherever they are in the country. The appellant's argument that the RPD underestimated the seriousness of the situation in Haiti and the personal risk cannot be accepted. The personal risk and the general situation within the country must not be confused. CONCLUSION [41] After analyzing all of the evidence, the panel concludes that the appellant did not discharge his burden of establishing that there is a "serious possibility" of persecution on one of the Convention grounds and that he failed to establish, on a balance of probabilities, that, if he were to return to Haiti, he would be personally subjected to a danger of torture or to a risk to his life or to a risk of cruel and unusual treatment or punishment. [42] The RAD dismisses the appeal and confirms the determination that XXXX XXXX XXXX XXXX XXXX XXXX is neither a "Convention refugee" nor a "person in need of protection" pursuant to subsection 111(1)(a) of the IRPA. [43] The appeal is dismissed. Charles Gauthier Me Charles Gauthier September 24, 2019 Date IRB translation Original language: French 1 Canada (Citizen and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-23301 RAD.25.02 (April 4, 2019) Disponible en français 9 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 (April 4, 2019) Disponible en français