MB9-21267

RAD File No. / No de dossier de la SAR : MB9-21267 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 October 16, 2020 Date de la décision Panel Me Miriam McLeod Tribunal Counsel for the person who is the subject of the appeal Gisela G. Barraza 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) is a citizen of Haiti who alleges that he experienced two incidents in Haiti, in XXXX 2015 and in 2016, which involved the same criminals, who robbed him because he was considered to be wealthy, having travelled outside of Haiti. The Refugee Protection Division (RPD) rejected the appellant's refugee protection claim because it noted inconsistencies regarding his status in the United States, because he gave contradictory testimony regarding the incidents in 2015 and 2016, because the objective documentary evidence indicates that Haitians returning to Haiti after living abroad do not face any specific risks solely because they are returning to the country, because the appellant never filed a complaint with Haitian authorities for the two incidents in 2015 and 2016, and because his behaviour was inconsistent with that of people who fear for their lives since he did not seek asylum in the United States. [2] The appellant argues on appeal that the RPD erred because it did not consider the presumption of the truthfulness of allegations set out in Maldonado, that the appellant's expatriate status was the only reason for the attacks and their repetitive nature, and that the inconsistencies identified with regard to his status in the United States and stays in Haiti are explained by the fact that he destroyed his documents before entering Canada. In addition, the appellant argues that the RPD erred in law in concluding that the personal risk to which the appellant would be subjected should he return to Haiti is part of a generalized risk faced by Haiti's population. [3] The Refugee Appeal Division (RAD) concludes that, although the RPD erred in its analysis of the appellant's allegations regarding his status in the United States, it did not err in its analysis or in its findings that the appellant's allegations regarding the incidents he allegedly experienced in Haiti in 2015 and 2016 were not credible. DETERMINATION [4] The RAD dismisses the appeal. The RPD was correct to determine that the appellant is neither a Convention refugee nor a person in need of protection. ANALYSIS [5] The RAD must conduct a probing, thorough, comprehensive and independent review of all the evidence submitted in light of the appellant's arguments on appeal.1 In this case, the RAD listened to the recording and applied the standard of correctness. Status in the United States and stays in Haiti [6] The RPD concluded that the appellant failed to establish that he lived in the United States for 14 years and that he travelled to Haiti several times until 2016,2 but the RAD notes that the RPD erred in its analysis for the following reasons. [7] The appellant testified that he obtained permanent residence in the United States in XXXX 2003, that he left Haiti at the time to move to the United States, and that he returned to Haiti several times for visits. The appellant explained that his permanent resident status was withdrawn and changed to temporary residence due to tax fraud, and that ultimately, he was required to leave the country after receiving a deportation order. The RPD noted that the appellant did not provide documentary evidence to support his allegations regarding the acquisition and subsequent loss of his status in the United States and his stays in Haiti over the years.3 The RPD also noted that, in his forms, he failed to mention that he had obtained permanent resident status in the United States.4 [8] However, the RAD notes that the appellant explained that he had ripped up all his documents concerning his status in the United States before arriving in Canada because he did not want to be deported by United States authorities, and that was why he did not provide evidence in that regard. The RPD noted his explanation but did not draw a conclusion on it.5 The RAD considers that the appellant's explanation is sufficient to justify the lack of evidence concerning his status in the United States and that the RPD erred in failing to comment on the appellant's explanations. In the RAD's opinion, although the timeline of his gradual loss of status in the United States was not completely clear, his testimony on when he obtained the status, the fact that he had lost his status in the United States gradually and the reason why he lost it-tax fraud-was consistent. In addition, the RAD notes that, although the appellant did not tick the box in the Schedule A form to declare that he had obtained permanent resident status in the United States, he wrote further down on the same page that his "Green Card" was withdrawn by United States authorities.6 He wrote the same thing in the IMM 0008 form.7 Therefore, in the RAD's view, the RPD erred in concluding that the appellant did not establish that he had lived in the United States. The RAD notes that, although there is no evidence apart from his testimony on his status in the United States, the appellant did provide the RPD with a driver's licence issued by the state of Florida in XXXX 2013,8 which indicates that he was in the United States at that time. The same document indicates that the card was replaced on XXXX XXXX, 2015,9 which means that the appellant was in the United States before his alleged trip to Haiti in XXXX 2015, as he stated in his Basis of Claim Form (BOC Form). [9] The RAD considers that the RPD erred in concluding that there was no evidence that he returned to the United States after his stay in Haiti ending on XXXX XXXX, 2016. The RAD notes that the appellant was consistent in his immigration forms10 and testimony regarding the fact that he arrived in the United States in XXXX 2003 and that he arrived in Canada via the United States in XXXX 2017. Although there is no United States entry stamp in his passport following his departure from Haiti, his passport indicates that he was in Haiti until XXXX XXXX, 2016, and his consistent statements in his immigration forms confirm that he was in the United States prior to arriving in Canada. These elements demonstrate that the appellant must have returned to the United States after leaving Haiti on XXXX XXXX, 2016, even though the exact date of his return to the United States is not established, and that he subsequently left for Canada in 2017. Contradictory testimony regarding the time of the 2015 and 2016 incidents [10] The RAD agrees with the RPD that the appellant's testimony was contradictory regarding the dates of his trips to Haiti in 2015 and 2016, when he was allegedly attacked by criminals, and that his responses changed.11 The appellant initially stated that he had travelled to Haiti in XXXX 2015 for eight days and that he went to Haiti in XXXX 2016 for eight days. At the request of the RPD, the appellant confirmed that the trip in 2016 had taken place in XXXX, but when the RPD mentioned that it had his passport before it, the appellant stated that his trip to Haiti in 2016 had taken place in XXXX and that the one in 2015 had taken place in XXXX, which contradicts his BOC Form regarding his trip in 2015. When the RPD confronted him with the fact that his new passport had been issued in XXXX 2016 in Port-au-Prince, the appellant again stated that his trip to Haiti in 2016 had taken place in XXXX. Finally, the appellant stated that his trip to Haiti in 2016 had taken place in XXXX, after the RPD explained that he had to have been in Haiti in XXXX 2016, given that his passport had been issued on XXXX XXXX, 2016, and he had obtained the passport in Port-au-Prince, and that he must have left the country on XXXX XXXX, 2016, since his passport contained an exit stamp from Haiti with that date. [11] In addition, the appellant stated that his trip in 2016 had only lasted four days because he had to leave the country quickly after being attacked on his way to his aunt's funeral. However, the RPD noted that the appellant stated that he had obtained his passport around XXXX XXXX, 2016, in Port-au-Prince, and that, according to his passport, he left the country on XXXX XXXX, 2016, which was clearly more than four days. When the RPD confronted him with this contradiction with the information in his passport, the appellant initially stated that he had obtained his passport on an urgent basis. He then changed his answer and stated that he had started taking steps to obtain the new passport while he was in Florida, and that he had actually stayed in Haiti for eight days in 2016 and four days in 2015, which contradicted the testimony he gave at the beginning of the hearing. The RAD agrees with the RPD that the timeline provided by the appellant regarding his trips to Haiti in 2015 and 2016 and their duration was inconsistent. [12] The RAD notes that the incidents allegedly experienced by the appellant in Haiti during his trips to the country in 2015 and 2016 form the basis of his refugee protection claim. The fact that he was unable to consistently state the date or duration of these trips during which the incidents allegedly occurred undermines the credibility of these allegations. In the RAD's opinion, the appellant's responses were inconsistent and changed as the RPD confronted him with the consistencies. As a result, the RAD concludes that the RPD did not err in drawing a negative credibility inference owing to these inconsistencies. Reasons he was targeted [13] The RAD considers that the RPD did not err in concluding that the appellant did not establish that he had been targeted by criminals in Haiti in 2015 and 2016 because they considered him to be wealthy.12 Although the appellant argues on appeal that the RPD should have considered his particular circumstances-that he had been attacked twice by the same criminals-before concluding that his fear was based on a generalized risk,13 the RAD notes that the RPD did exactly what the appellant is asking. The RPD noted that he stated that he had earned US$XXXX every two weeks and that he had had to seek social assistance in the United States. It asked the appellant if he had interacted with the criminals in any way during the incidents in question, and he answered no. The RPD asked whether his family or friends in Haiti perceived him as being wealthy, or if he, his family or friends had told people in Haiti that he was wealthy, and he answered no to both questions. The appellant explained that he believes the criminals attacked him because they perceived him as being wealthy given that he had returned from abroad. The RPD asked the appellant how the criminals could have known that he had returned from abroad, and he stated that it was possible that someone had informed them. In the RAD's view, the appellant was clearly speculating as to why the criminals targeted him since he had not spoken with them. The RPD noted that the documentation in the National Documentation Package (NDP) on Haiti indicates that a person does not face a specific merely because they have returned to Haiti from abroad, that a person arriving in Haiti from abroad was neither automatically nor systematically targeted, and that people face only if inner circle is aware that they returned from abroad and believe they have a lot of money.14 Since the appellant stated that his family and friends do not consider him wealthy, the RPD concluded that the appellant had not rebutted the contents of the documentary evidence. [14] The RAD notes that, since the RPD's decision, the document in the NDP on Haiti that the RPD referred to has been updated. The RAD therefore sent a notice to the appellant inviting him to provide submissions concerning the information in the updated document and the document's implications on his claim.15 However, the appellant did not answer within the required time frame, and, as at the date of this decision, the RAD has not received a response from the appellant. [15] The RAD notes that the updated document states that: ...people returning from abroad are not automatically categorized as such by society in general, because there is no way for their fellow citizens to know that they are returnees, unless there is media coverage; according to him, any [translation] "indexing" is only by their inner circle.16 The document reports that Haitians who are repatriated or deported to Haiti are often regarded by their fellow citizens as criminals or wrongdoers.17 The document repeats what was in the previous version, namely that "a person returning to Haiti after having lived abroad for a long time will not necessarily or automatically face risks in Haiti."18 However, the RAD notes that, according to another source cited in the updated document, "Haitians returning to Haiti after a long stay abroad risk being targeted by criminals...because they are considered to be wealthy...or to have access to money because of their foreign connections."19 Nevertheless, people still have to know that the individuals have returned from abroad and, as indicated in the updated document, unless their return is covered by the media, their fellow citizens could not know where they have returned from. In addition, the updated document states that "[s]ome sources have stated that relatives of a returnee could, in some cases, pose a threat to that person whose return deprives them of their former remittances."20 However, in this case, the appellant testified that his family and friends in Haiti do not consider him to be wealthy. Finally, the updated document states that the risk that people returning from abroad would be targeted by criminals is "particularly high in the vicinity of...the Port-au-Prince airport...where thieves [target] returnees perceived as having access to money."21 However, the appellant stated that the two incidents he experienced in 2015 and 2016 had taken place near the city of Saint Marc, which is not near the Port-au-Prince airport. Therefore, the RAD notes that, even in light of the updated documentation, the appellant did not establish that he had been targeted by criminals because he returned from abroad and that he was perceived as being wealthy solely because he had returned from abroad. [16] Consequently, the RAD notes that the RPD did not err in concluding that the appellant did not establish, on a balance of probabilities, that he was targeted by criminals because he had returned from abroad. Although the appellant stated that the criminals who robbed him in 2016 were the same as those who had robbed him in 2015, given that he recognized their car, the RAD notes that he stated that the two incidents with the criminals took place on the road near the city of Saint Marc and that he had never spoken to them. He therefore did not establish that he was personally targeted by the criminals in question, or that it had not been by chance that he was robbed on the same road and by the same criminals. Therefore, what remains is that the appellant was a victim of the generalized violence that persists in the country to this day. The objective documentation in the NDP indicates that, in Haiti, insecurity has persisted in the country for years and criminal violence is just one manifestation of this insecurity.22 However, this type of violence is something that all people in Haiti risk encountering; therefore, it cannot constitute a basis for protection under subsection 97(1) of the Immigration and Refugee Protection Act. No complaint to Haitian authorities and return to Haiti after the 2015 incident [17] The RPD concluded that the appellant did not rebut the presumption of state protection in Haiti since he had not even tried to obtain it.23 It noted that the appellant stated that his fear in Haiti had begun in 2015 after the first incident with the criminals but that he had returned a few months later in 2016, and that this behaviour was inconsistent with that of people who fear being persecuted or who are at risk of personal harm in their country of nationality. The appellant does not challenge these conclusions, and the RAD finds no error in the RPD's analysis or conclusion in this regard and agrees with it. Failure to seek asylum in the United States [18] The RPD found that the appellant's explanations for not seeking asylum in the United States following the incident in 2016 were not credible since, with the temporary status he had in the United States in 2016, he knew that he could be deported to Haiti, and he did not seek asylum in the country even though he had [translation] "almost died" in Haiti in 2016.24 The RPD concluded that this behaviour was inconsistent with that of people who have a well-founded fear of persecution or who face a risk of personal harm in their country of nationality.25 The appellant is not challenging this conclusion on appeal, and the RAD considers that the RPD did not err in its analysis or conclusion and agrees with it. Credibility findings [19] Although the RAD considers that the RPD erred in analyzing the appellant's allegations regarding his status in the United States, the RAD notes that the RPD did not err in analyzing the credibility of the appellant's allegations concerning the incidents with the criminals in 2015 and 2016. The appellant was unable to establish, on a balance of probabilities, when the key incidents of his refugee protection claim took place or the duration of his stays in Haiti when the incidents allegedly took place, owing to his contradictory and evolving testimony on those points. The appellant also failed to establish, on a balance of probabilities, that the criminals targeted him because he had returned to Haiti from abroad and was considered to be wealthy, since, throughout the hearing, his testimony demonstrated that his allegations on that point were based entirely on speculation. Finally, the appellant did not file a complaint with Haitian authorities following the incident with the criminals in 2015 or after the incident in 2016, and did not seek asylum in the United States after the incident in 2016 even though he only had a temporary status in that country at the time. The RAD agrees with the RPD that these elements also undermine the credibility of his allegations. CONCLUSION [20] For all these reasons, the RAD agrees with the RPD's conclusion that the appellant failed to establish that there is a serious possibility that he would be persecuted on one of the Convention grounds, and that he also failed to establish that, on a balance of probabilities, he would be personally subjected to a danger of torture, a risk to his life, or a risk of cruel and unusual treatment or punishment should he return to Haiti. DECISION [21] The RAD dismisses the appeal and confirms the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Miriam McLeod Me Miriam McLeod October 16, 2020 Date IRB translation Original language: French 1 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93. 2 SPR-1, Refugee Protection Division (RPD) record, RPD reasons, at pp. 6-7, at paras. 14-19. 3 SPR-1, RPD record, RPD reasons, at pp. 6-7, at paras. 14-15, 18; SPR-1, RPD record, at p. 80; SPR-1, RPD record, at p. 74; SPR-1, RPD record, at p. 102. 4 SPR-1, RPD record, RPD reasons, at p. 6, at para. 16. 5 SPR-1, RPD record, RPD reasons, at p. 7, at para. 18. 6 SPR-1, RPD record, at p. 80. 7 SPR-1, RPD record, at p. 74. 8 SPR-1, RPD record, at p. 102. 9 Ibid. 10 See SPR-1, RPD record, at pp. 74, 81-82, 88. 11 SPR-1, RPD record, RPD reasons, at pp. 7-8, at paras. 20-24. 12 SPR-1, RPD record, RPD reasons, at pp. 8-9, at paras. 25-28. 13 P-2, appellant's record, at p. 20, at paras. 17-18. 14 SPR-1, RPD record, RPD decision, at pp. 9-10, at paras. 27-30 [the RPD referred to the National Documentation Package (NDP) on Haiti (June 28, 2019), Tab 14.1, Haiti: Whether Haitians who have lived abroad for a long time are at risk if they return to the country; the kinds of risks they might face; whether their return could represent a threat to their families and, if so, what kind of threat their families would face and from whom (November 29, 2018), HTI106204.FE, Immigration and Refugee Board of Canada (IRB), November 29, 2018]. 15 See SAR-1, RAD notice sent to the appellant, dated September 25, 2020. 16 SAR-2, NDP on Haiti (September 1, 2020), Tab 14.1, Treatment by society of Haitians who have lived for a long time abroad, especially in Canada, after they return to their country; whether they are at risk of being victims of violence, and including the type of violence and from whom; whether their return could represent a threat to their families (2018-August 2020), HTI200334.FE, IRB, August 27, 2020, at pp. 1-2. 17 Ibid., at p. 3. 18 Ibid., at p. 5. 19 Ibid., at p. 6. 20 Ibid., at p. 9. 21 Ibid., at p. 10. 22 For example, see SAR-2, NDP on Haiti (September 1, 2020), Tab 7.2, Haïti : La situation sécuritaire [Haiti: the security situation], France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons], August 29, 2016 (available under the same tab of the NDP available at the time of the hearing before the RPD). 23 SPR-1, RPD record, RPD reasons, at pp. 9-10, at paras. 29-30. 24 SPR-1, RPD record, RPD reasons, at p. 10, at paras. 31-32. 25 SPR-1, RPD record, RPD reasons, at p. 10, at para. 33. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-21267 RAD.25.02 (January 14, 2020) Disponible en français 4 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 (January 14, 2020) Disponible en français