MB9-03377

RAD File No. / No de dossier de la SAR : MB9-03377 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 July 31, 2020 Date de la décision Panel Me Love Saint-Fleur Tribunal Counsel for the person who is the subject of the appeal Me Jouman El-Asmar 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] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Haiti. He is alleging a fear of returning to Haiti because he is afraid that a criminal called XXXX will attack him. On XXXX XXXX, 2014, the appellant allegedly joined the Organisation nationale pour le développement d'Haïti (ONADEH) [national organization for Haiti's development], a group affiliated with the Mouvement Tèt Kale (MPK) [Tèt Kale movement]. His work apparently consisted in motivating young people not to join a gang. Beginning on XXXX XXXX, 2014, the appellant reportedly received threats from XXXX, who accused him of hindering his recruitment of new youths and allegedly demanded that he stop his work. [2] On January 29, 2019, the Refugee Protection Division (RPD) rejected the appellant's refugee protection claim. The RPD found that he was not credible because of contradictions and inconsistencies in his story. The RPD concluded that he had therefore not established, on a balance of probabilities, that the events causing him to leave Haiti had taken place. [3] The appellant is challenging the RPD's decision. He argues that it did not properly assess his fear of persecution in Haiti, since its credibility findings were wrong and not based on the evidence on the record. [4] In my opinion, the determinative issue in this appeal is whether the RPD erred in its assessment of the appellant's credibility. Having carried out a complete and independent analysis of the evidence presented, I conclude that the RPD's decision was correct. DETERMINATION OF THE APPEAL [5] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), I confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. I dismiss the appeal. ROLE OF THE REFUGEE APPEAL DIVISION [6] The Refugee Appeal Division (RAD) must apply the correctness standard of review, in accordance with the Federal Court of Appeal's decision in Huruglica.1 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.2 In this case, I consider that the RPD does not enjoy any specific advantage. As a result, I will conduct my own analysis of the record, which includes listening to the recording of the hearing, to establish whether the RPD erred by applying the correctness standard of review. ANALYSIS OF THE MERITS OF THE APPEAL Appellant's behaviour - failure to apply for asylum in the United States and delay in filing a claim [7] The RPD considered that, in not applying for asylum in the United States and in choosing to remain there illegally for more than two years, the appellant's conduct demonstrated a lack of subjective fear and undermined his credibility. [8] In the appellant's opinion, the RPD's conclusion is wrong because he was honest in answering the panel. He argues that he explained his ignorance of the US system and of English, as well as the fact that in 2015 a lawyer told him that he had exceeded the one-year period during which he could apply for asylum and that he had no choice but to remain in the United States illegally until XXXX 2017. Based on my own analysis of the record, I am of the opinion that these justifications do not satisfactorily explain why he failed to apply for asylum in the United States and why he waited until May 2017 to claim refugee protection in Canada. [9] To begin, it should be remembered that, according to the case law, individuals fleeing persecution are expected to seek asylum at the first opportunity, which would normally be in the first country they reach.3 [10] In this case, the appellant never applied for asylum in the United States, even though he fled Haiti for the United States on XXXX XXXX, 2014, with a visa valid until XXXX XXXX, 2015, and remained until XXXX XXXX, 2017. He did not apply for asylum in that country upon his arrival, and he also failed to do so before his visa expired in XXXX 2015, choosing instead to consult a lawyer one and a half years after he arrived in the country.4 Yet it was allegedly because he feared for his life that he travelled to the United States. The appellant was safe in that country, far from the criminal called XXXX who allegedly threatened him in 2014. The appellant was familiar with the United States. He had visited that country many times for several weeks, even several months, and he has friends there with whom he stayed during his many visits. The last time he had visited was from XXXX XXXX to XXXX, 2014. The appellant gave lectures in the United States on various social and religious topics. [11] Moreover, it appears from his testimony that from 2004 to 2010 the appellant lived and worked in the Bahamas, an English-speaking country where both his parents are citizens.5 The appellant also acknowledged at the hearing that most Haitians apply for asylum in the United States without speaking English.6 [12] Yet it must be noted that the appellant waited until May 2017 to claim refugee protection in relation to events that dated back to 2014. He did this even though, with his US visa having expired, he had been knowingly living there illegally since 2015,7 without legal status and subject to deportation8 to his country of origin where, since 2014, he allegedly feared for his life. [13] In this context, and given the severity of the alleged risk to his life in Haiti since 2014, I am of the opinion that the RPD correctly concluded that the appellant's behaviour demonstrated a lack of subjective fear in his country. This behaviour is also inconsistent with the alleged risk. In my opinion, this demonstrates that the appellant does not fear for his life in Haiti for any reason. I find that his credibility and that of his allegation that he would be at risk in Haiti are significantly undermined. [14] In addition, according to his testimony at the hearing,9 the appellant lived for many years, until XXXX 2014, at the address where the criminals allegedly vandalized his residence and where he was most likely to be located by the criminals whom he claimed to fear. I find that this behaviour is inconsistent with the alleged risk. Irregularities, contradictions and inconsistency in the evidence presented [15] The appellant argues that the RPD considered that his allegations were implausible because he began receiving threatening calls the same day he joined the ONADEH. He refers to paragraph 24 of the RPD's decision. [16] In my opinion, this claim is unfounded, as the RPD did not draw any conclusions of implausibility in this case in general, let alone in relation to this fact in particular. All that the RPD did was note that the speed with which the criminal XXXX allegedly reacted, blaming the appellant from the very first day for thwarting his recruitment activities, was surprising, to say the least. In any case, even if the RPD had considered this implausible, which it did not, this would have been only one marginal aspect of its decision, which, from what I can tell, is based on other credibility issues in addition to the appellant's behaviour. [17] According to the appellant, on XXXX XXXX XXXX 2014, the criminal XXXX and his associates broke into his home and vandalized his residence. However, the RPD noted that the appellant submitted evidence, an excerpt from the registry minutes,10 regarding this incident that presents numerous problems. [18] On appeal, the appellant submits that mere grammar mistakes in a document are not contradictions and that he cannot be held accountable for the content of a document that he did not write. Based on my own analysis, for the reasons below, I am of the opinion that these explanations do not satisfactorily explain the major issues raised by that document. [19] I have read the document and I note that it is full of significant anomalies. There are those identified by the RPD that go beyond spelling mistakes. Among the many obvious irregularities, I note that, in addition to spelling mistakes in the header, contrary to what is written there, 2014 was not the 201st year of Haitian independence, since that occurred in 1804, according to the appellant's testimony.11 The 201st year was instead 2005. [20] Another example, while the names of the justice of the peace and the registrar appear at the beginning of the document, those names were tacked on to other, pre-existing names under the signatures. Some passages, like the following, are indeed, as the RPD noted, completely incomprehensible: [translation] "Incontinent we aforesaid justice of the peace, attend as said is, we are emotionally to Ms. XXXX of counterpart of communal section of haut-du-Cap...." [21] Moreover, the appellant, an educated man, a French-language teacher, an international speaker, declared by signing his Basis of Claim Form (BOC Form) that all attached documents were true, complete and correct, and furthermore was represented by counsel when he prepared and submitted his BOC Form and the evidence in support of his allegations. [22] In my opinion, in this context and given the significant anomalies in the excerpt from the registry minutes, the RPD's conclusion, which was to give no probative value to this document, was the correct one. [23] Despite the appellant's arguments on appeal that this document does not contradict his allegations,12 I am of the opinion that some contradictions and inconsistencies can nevertheless be found therein. For example, whereas the appellant stated that the criminal XXXX and his associates came to his home on XXXX XXXX, 2014, at 7:30 in the evening, the excerpts from the registry minutes state that the report was written on XXXX XXXX, 2014, at 7:30 in the evening. That is contradictory, or at the very least it is an inconsistency in the evidence. For the same reasons provided previously, his explanations that he is not responsible for what is written in that document are not satisfactory. [24] Another example of a contradiction or inconsistency between his testimony and the evidence submitted is that, whereas the appellant did not state in his BOC Form that he had filed a complaint with the police and did not testify at the hearing that he had done so, the excerpt from the registry minutes about his statement to the justice of the peace states that he reported the incident of XXXX XXXX, 2014, to the police. When the RPD asked him about this, instead of clarifying the contradiction, he introduced further confusion by stating that sometimes when a person goes to a police station in Haiti, they find no there to talk to.13 [25] In light of the foregoing, I am of the view that the cumulative problems in this document, evidence that he himself submitted and in which it states that the content had been read back to him, a document pertaining to a key allegation in his account, namely, the fact that the criminal XXXX had attacked him, mean that the appellant failed to demonstrate that the XXXX XXXX, 2014, incident at his home had occurred. In my opinion, this further undermines his already significantly undermined credibility.14 [26] The appellant submits that, after analyzing the excerpt from the registry minutes, the RPD made a negative credibility finding in relation to the other events that occurred in Haiti. At this point, I consider that, given the problems identified in the evidence presented and between the evidence and his testimony, as well as in his behaviour, there is enough to find that the appellant lacks credibility. [27] As for the medical certificate, the appellant argues that the RPD did not give it any probative value in relation to the assault of XXXX XXXX, 2014, that allegedly sent him to the hospital, since it did not establish a link between that incident and his membership in ONADEH and the Initiative groupe docteur par la foi pour l'assistance à l'enfance et vieillard (IGDFAEV) [doctor by faith group initiative to help children and the elderly]. In the appellant's opinion, this was an error, since he testified that he had been attacked on XXXX XXXX, 2014, and his testimony must be presumed to be true. [28] Based on my own analysis, I note that there is an anomaly in this document. It states that, at the time of his hospitalization, the appellant was 45 years old, which is incorrect since he had just celebrated his 44th birthday one month previously. That said, in my opinion, given the previous observations about the appellant's credibility, I consider that this medical certificate would not be enough to demonstrate that he was assaulted or threatened by the criminal XXXX and his associates because of his work. [29] I note that the appellant testified15 that he did not file a police report for the violent assault he allegedly suffered on XXXX XXXX, 2014, which he nevertheless attributed to XXXX, because he suffered something very serious and unusual in that assault. Yet according to his allegations, that violent assault left him unconscious in the street and resulted in his spending a day in the hospital. In these circumstances, I consider it inconsistent that the appellant did not report that physical assault, the only one he allegedly suffered, to the police. This, even though he knew who the culprit, his alleged attacker, was, even though he allegedly feared him, a dangerous criminal who since XXXX XXXX, 2014, had been threatening to attack him, and even though he had taken the trouble to previously report the same criminal's much less serious incident, the vandalism of his home. In my opinion, this inconsistency in the story further undermines the appellant's credibility. In short, considering the appellant's behaviour, in conjunction with the problems in the evidence presented, the contradictions and the inconsistencies regarding the events that he allegedly experienced in Haiti at the hands of a criminal called XXXX, I conclude that the RPD did not err in finding that the appellant lacked credibility overall, and that, contrary to the appellant's allegations on appeal, its decision was correct. CONCLUSION [30] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the RPD's determination that the appellant, XXXX XXXX XXXX XXXX, is neither a Convention refugee nor a person in need of protection. (signed) Love Saint-Fleur Me Love Saint-Fleur July 31, 2020 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93; Rozas del Solar v. Canada (Minister of Citizenship and Immigration), No. IMM-2645-17, Diner, November 14, 2018; 2018 FC 1145. 3 Mendez, Alberto Luis Calderon v. M.C.I. (F.C., No. IMM-1837-04), Teitelbaum, January 27, 2005; 2005 FC 75. 4 Minutes 00:18:40 et seq. of the recording of the hearing before the Refugee Protection Division (RPD). 5 Minutes 00:13:18 and 00:16:56 et seq. of the recording of the hearing before the RPD. 6 Minutes 00:27:50 et seq. of the recording of the hearing before the RPD. 7 Minutes 01:29:17 et seq. of the recording of the hearing before the RPD. 8 Minutes 01:33:58 et seq. of the recording of the hearing before the RPD. 9 Minutes 01:17:00 et seq. of the recording of the hearing before the RPD. 10 SPR-1, RPD record, document 4-Exhibit D-6: Excerpt from the minutes of the registry of the peace court of the south section of Cap-Haïtien, at page 129. 11 The appellant stated at the hearing that the year of Haitian independence was 1804. 12 P-2, appellant's record, appeal memorandum, at paragraph 21, at page 18. 13 Minutes 01:22:57 et seq. of the recording of the hearing before the RPD. 14 Karki v. Canada (Citizenship and Immigration), 2019 FC 1294. 15 Minutes 00:55:46 et seq., then 01:17:14 et seq. of the recording of the hearing before the RPD. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-03377 RAD.25.02 (January 2020) Disponible en français 2 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 2020) Disponible en français