MB9-03569

RAD File / Dossier de la SAR : MB9-03569 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 Montreal, QC Appel instruit / entendu à Date of decision September 14, 2020 Date de la décision Panel Me Robert Cox Tribunal Counsel for the person who is the subject of the appeal Me Eric Freedman 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] This is an appeal of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) of Canada rejecting the claim of XXXX XXXX XXXX XXXX (the Appellant) for failure to establish that he is a refugee in accordance with Sections 96 or 97(1) of the Immigration and Refugee Act (IRPA)1. [2] The Appellant claimed refugee protection based on an alleged fear of persecution, bodily harm or even death at the hands of unidentified bandits if he returns to Haiti. The Appellant contends that he was the victim of repeated extortion schemes between 2016 and XXXX 2017 culminating in an alleged ransacking of his shop and threat to his life when he insulted and refused to pay the Bandits (hereafter the Agents of Harm) on XXXX XXXX, 2017. [3] The Appellant reports that he runs a XXXX business out of his home in Port-au-Prince. The business is located in the front portion of his home and he, his wife and their two children live in the back portion of the home. He asserts that one of the Agents of Harm voiced a desire to kill him and so he escaped out of the back portion of his residence, ran to the church where his wife and children were attending a service and together that they fled to stay with his wife's sister in Delmas. He reports that his wife and children remained with his sister-in-law for two months but because the home was too small, he went to stay with friends and his fraternity brother for a number of nights before returning to hide at his deceased mother's house in Miragoân. Before going to Miragoân, the Appellant alleges he went to his lawyer's office on XXXX XXXX, 2017, and he then went to file a complaint with Haitian police on XXXX XXXX, 2017. The Appellant reported that his family has been leaving a nomadic existence since the XXXX XXXX incident and that, for his own safety, he decided to leave Haiti on XXXX XXXX, 2017, but not before filing another complaint with the Haitian police on XXXX XXXX, 2017. The Appellant fled Haiti for the United States of America (U.S.A.) where he remained for two and half months but explained that he did not claim asylum because of the current administration's anti-immigration policies. As such, he decided to cross over into Canada and seek protection as a refugee. [4] The RPD determined that the Appellant credibly testified about paying extortion schemes and about the event of XXXX XXXX, 2017; however, the RPD determined that the Appellant lacked credibility as concerns his testimony about the nomadic movements of his wife and children and, after having considered and examined the Appellant's evidence, it concluded the Appellant did not establish himself as a Convention Refugee or as a person in need of protection pursuant to Sections 96 and 97 of the IRPA. [5] The Appellant submitted new evidence for consideration before the RAD and questions the RPD's credibility assessment of him, arguing that the RPD erred in fact and in its consideration of the Appellant's testimony. The Appellant did not argue that the RPD's erred in law but he does contest the RPD's assessment of the overall evidence and its determination that the Appellant is not in need of protection pursuant to Section 97 (1) b) of the IRPA. The Appellant did not specifically raise a contestation concerning the RPD's Section 96 decision by which it concluded that the Appellant did not have a nexus. DECISION [6] For the reasons which follow, the Appeal is dismissed. The RAD agrees with the RPD that the determinative issue in this matter is credibility and it finds that the RPD correctly assessed and determined both the Appellant's credibility and the Appellant's personal need of protection. ROLE OF THE RAD [7] Unless otherwise specifically stated below, the RAD has applied a correctness standard in its review of the RPD decision. PROPOSED NEW EVIDENCE [8] Evidence from the person who is the subject of the appeal is only admissible if it meets the conditions set forth in subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). That is, proposed new evidence is only admissible if it arose after the claim was rejected, or it was not reasonably available, or the person could not reasonably have been expected to present it at the time the claim was rejected.2 If one of these conditions is met, the RAD will also consider if the evidence is credible, relevant and new.3 [9] The Appellant tendered six documents which he purports to be new evidence: (i) an affidavit from the Appellant dated March 18, 2019; and (ii) a collection of 5 news reports (Exhibits A-2 through A-6). Exhibits A-2 and A-3 each provide publication dates and report on events subsequent to the date of the RPD hearing but prior to the date of the RPD decision. Exhibits A-4, A-5 and A-6 each provide publication dates and report on events subsequent to the date of the RPD decision to reject the Appellant's claim, specifically, February 3, 2019. [10] The Appellant submitted the six documents en liasse with the Appellants' Memorandum of Appeal (MOA). The Appellant filed the documents in accordance with RAD Rule 3(3)(g)(iii); more specifically, the Appellant provided arguments (albeit not strictly "full and detailed" arguments) as to how these documents meet the conditions for their applicability in accordance with RAD Rule 3(3)(g)(iii).4 As such, and in accordance with subsection 110 (4) of the IRPA, the RAD proceeded to review each of the documents independently and with respect to all evidence in the file. Following said review, the RAD finds that Exhibits A-2 and A-3 are dated prior to the RPD's decision to reject the claim and that neither exhibit relates to nor contains any content that arose after the RPD decision that the Appellant could not have communicated to the RPD prior to its decision of February 3, 2019. Moreover, Exhibits A-2 and A-3 are inadmissible as new evidence as there is no evidence that can be extracted from the content of either document that the Appellant could not reasonably have been expected to provide or to plead before the RPD prior to its decision. Each of Exhibits A-2 and A-3 is a reiteration of the Appellant's general assertions about the general state of security, or lack thereof, within Haiti. Notwithstanding the Appellant's assertions that those bandits, in general, control all of Haiti, the RPD, at paragraphs 12 through 14 of its decision, correctly cited the Federal Court's Guerrero decision5 and determined the Appellant presented insufficient credible evidence that there was any prospective risk of harm upon his return to Haiti. In this way, the RAD finds, as per Mr. Justice Martineau's 2018 decision in Denis6 that the Appellant was not, in any way, taken by surprise by the RPD's determination that the evidence to support his allegations as such, the RAD finds that Exhibits A-2 and A-3 provide no new evidence that could not reasonably have been provided before the RPD. [11] With respect to Exhibits A-1, A-4, A-5 and A-6, each of these documents are admissible in accordance with subsection 110(4) of the IRPA as each document reports of events which occurred subsequent to the date the RPD decision and which the Appellant could not have reasonably been expected to provide to the RPD before said decision. In accordance with the Federal Court jurisprudence7, however, as was noted above, the RAD must now determine if Exhibits A-1, A-4, A-5 and A-6 each satisfy the conditions of newness, relevance and credibility. Exhibit A-1-Appellant's Affidavit [12] Although not presented in the typical format of a formal affidavit, the RAD notes that the Appellant did, nonetheless, make an attempt to adhere to a style of formality with Exhibit A-1. Moreover, Exhibit A-1 is purported to provide reports of new events that can serve to support the merits of the Appellant's claim. At first glance, Exhibit A-1 appears to be relevant, however, for the reasons which follow, the RAD finds Exhibit A-1 does not satisfy the credibility test. [13] Paragraphs 2 and 3 of the Exhibit A-1 contend that the Appellant's wife and daughter were "attacked" after his wife picked up their daughter from school and were on their way home. His wife and daughter were not harmed by these unidentified armed individuals and the reason that these men approached them was to pass a message to the Appellant. The RAD submits that his wife and daughter, therefore, were not attacked but were, rather, approached. The RAD notes, also, that the alleged message makes no mention of the requirement to pay any extortion money that the Agents of Harm were attempting to collect on XXXX XXXX, 2017. Instead, the relayed message appears more related to politics and the political beliefs or political opinions of the Appellant (opinions and beliefs to which he alludes at paragraph 4 of his Memorandum of Appeal-MOA-but then vehemently denies at paragraph 6 of Exhibit A-1). The RAD notes the purported message is inconsistent with the Appellant's initial claim; that is, his initial claim is not one based on fears of harm or persecution related to political beliefs or opinion but is, rather, one which is based on fear of personal harm from unidentified bandits for failure to pay extortion money. [14] Yet another contradiction also appears in the content of Exhibit A-1; more specifically, during the RPD hearing the Appellant very clearly testified that the Agents of Harm do not know his wife or his children and that his wife and children live, work and study in Port-au-Prince. Exhibit A-1 omits to explain or provide any evidence as to how or why his wife and children have suddenly become known to these bandits. That is, since the Appellant's departure from Haiti his there is no evidence that his wife and children had been exposed to any threats, harassment or intimidation; however, and shortly following the RPD's negative decision, armed individuals, that are somehow unexplainably linked to Agents of Harm were able to suddenly and coincidentally locate and identify the Appellant's wife and daughter (who themselves had allegedly been living nomadic lives since XXXX XXXX, 2017) while they were walking in the streets. The RAD finds such an explanation to stretch the limits of common logic and to lack credibility. [15] Finally, but not least importantly, the RAD curiously notes a similarity in the formatting and the resemblance of Exhibit A-1 with Exhibits P-4, P-6, P-7 and the annexes to Exhibit P-8 that were submitted before the RPD. These resemblances are curious because Exhibit A-1 was completed and signed while the Appellant was here in Canada, whereas Exhibits P-6, P-7 and the annexes to Exhibit P-8 were purportedly completed and signed (e.g. by the Appellant's wife) in Haiti. The RAD finds that these resemblances detract from the overall credibility of the exhibit. [16] The RAD notes all and each of the aforementioned omissions, coincidences, contradictions and inconsistencies with Exhibit A-1 and when considered as a whole determines that they detract from the credibility of the exhibit. For this reason, the RAD finds that Exhibit A-1 does not meet the jurisprudentially established criteria for credibility and it is, therefore, inadmissible as new evidence. Exhibits A-4, A-5 & A-6-News Reports [17] The RPD found that the determinative issues in the Appellant's claim involved credibility and prospective risk. The RPD correctly concluded that the Appellant did not credibly establish that he is a person in need of protection for fears relating to his personal security and rather fleetingly determined at paragraph 23 of its decision that the Appellant would not be exposed to any different risk than any other Haitian upon his return to Haiti. To this end, the RAD notes that the RPD did remind the Appellant and did reiterate to him on at least two occasions during the RPD hearing that the RPD, as a tribunal and not unlike the RAD, is very much aware of the precarious security climate within Haiti; however, the RPD did not specifically restate its knowledge of said climate in its decision. Instead, the RPD incorrectly and somewhat fleetingly referenced the objective evidence from the Haitian National Documentation Package (NDP).8 While this error is not one which is fatal to the RPD's final determination, the RAD acknowledges that the sparse reference to an NDP document can lead one to conclude, as the Appellant appears to have done with the submission of Exhibits A-4, A-5 and A-6, that further information was needed to sufficiently demonstrate the precarious state of security in Haiti. Indeed, as the RPD stated during its hearing and as the RAD here acknowledges, it is well documented that the population of Haiti as a whole is challenged with economic, social and political instability. Exhibits A-4, A-5 and A-6 provide further reports explaining the contemporary intensity of the instability Haiti continues to suffer as a country. That being said, Exhibits A-4, A-5 or A-6 do not relate to the Appellant personally, none of these exhibits name the Appellant nor his wife or his children, none the exhibits refer to his business, or reference to his address. In short, none of these exhibits are wholly personal to the Appellant. Moreover, they do not depict or contain any new evidence that the Appellant would be subjected to any different risk than that which is not of the same nature or degree as is faced by the Haitian population or a major subgroup thereof. For these reasons, the RAD concludes that Exhibits A-4, A-5 and A-6 are inadmissible. ANALYSIS RPD Section 96 Analysis [18] The Appellant broadly contested the RPD's interpretation of the facts and of his testimony without providing any specific contestation about the RPD's finding that the Appellant did not establish that he has a nexus pursuant 96 of the IRPA. At paragraph 1 of the Appellant's MOA, he simply states that the RPD erred at paragraph 12 of its decision without any argument as to how or by what means the RPD erred. The RAD submits that it is not sufficient to simply state, as the Appellant has so done, that the RPD erred in its interpretation of the documentary and testimonial evidence. As such, for the sake of transparency and in keeping with procedural fairness, the RAD not reviewed the RPD's Section 96 analysis but herein conducts an independent Section 96 analysis. The RPD considered the Appellant's Basis of Claim documentation, including his amended narrative and thoroughly questioned the Appellant about whom he fears in Haiti and why he fears them. Following this thorough analysis, it determined that the Appellant did not establish that he had any nexus to the Convention; that is, it determined that the Appellant did not establish that there was a serious possibility that he would be persecuted on any grounds related to race, religion, nationality, political opinion or as a member of a particular social group. [19] After having reviewed the Appellant's BoC and listened to the recording of the RPD hearing, the RAD agrees with the RPD's findings and concludes that the RPD correctly determined that the Appellant did not establish a nexus to any of the five convention grounds. In his BoC, the Appellant did allude to his belief that bandits throughout Haiti work for politicians or that they collude with the Haitian policing authorities. However, his BoC contains no evidence that he or his family was ever targeted for political reasons, or for that matter for any of the five convention grounds. As such, the RAD finds that the RPD conducted a correct, albeit brief, Section 96 analysis and that it correctly determined, as does the RAD, that the Appellant did not establish that there is a serious possibility that he will be persecuted upon his return to Haiti for reasons relating to his race, religion nationality, political opinion or as a member of a particular social group. Section 97 Analysis-General Risk Appellant's credibility [20] The RPD found that the Appellant credibly testified about the extortion schemes and the XXXX XXXX, 2017, incident; however, it determined that the Appellant's testimony about the alleged nomadic existence that his wife and children were living subsequent to said incident lacked credibility. The RPD determined that there was a serious contradiction in the Appellant's testimony. That is, when questioned by the RPD, the Appellant testified that his wife and children continue to work and study in Port au Prince yet his wife's letter of November 4, 2018 (i.e. Appellant's Exhibit P-7 in the RPD file) stipulated that she and her children continue to live a nomadic life without any assistance from the Haitian authorities. The RPD noted that the Appellant appeared surprised by its question concerning the contradiction, then determined that the Appellant had adjusted his testimony accordingly notwithstanding that he had declared his BoC documentation to be complete, accurate and true. The RPD then, correctly, questioned the Appellant to ascertain why he feared a return to Haiti and the Appellant spontaneously responded that he feared the general insecurity in Haiti. [21] Upon appeal and in response to these RPD findings, the Appellant simply provides a general argument that the RPD erred in its interpretation of the Appellants documentary evidence and testimony. The Appellant makes no further specific argument in support of these allegations, nor does the Appellant reference any objective evidence from the Haitian NDP in support of his assertions. The Appellant implicitly expresses a general fear of a return to Haiti in paragraph 6 of his MOA without demonstrating or raising any argument, other than to refer to newspaper articles that have been determined as inadmissible, as to why he would face any different risk than that faced by the Haitian population or a major subgroup thereof. [22] Having considered the Appellant's arguments and the RPD's findings, the RAD agrees with the RPD and finds that the RPD correctly determined that the Appellant has not established that he is in need of protection for his personal security or that he faces any different risk than the risks by the Haitian population as a whole. [23] Notwithstanding the commonality of formatting and the resemblance of the Appellant's Exhibits P-4, P-6, P-7 and the annexes to Exhibit P-8, the RAD also noted that the Appellant clearly contradicted himself about the nomadic lifestyle of his wife and children. The Appellant testified that the Agents of Harm do not know his wife or children and he also testified that she works in Port-au-Prince as a XXXX (i.e. a rather public and stable profession). He also testified that his children study in Port-au-Prince and continue to live with their mother in Port-au-Prince. The Appellant has provided no credible evidence that his wife and children have lived or continue to live nomadic lives because of the XXXX XXXX, 2017, incident and there is no credible evidence that the Agents of Harm have attempted to contact the Appellant or any member of his family since said XXXX 2017 incident. The RAD also notes that Appellant's Exhibit P-7 is in and of itself contradictory. Exhibit P-7 is an alleged letter from the Appellant's wife dated and signed by her on November 4, 2018. The RAD notes that although the letter purports to explain that the Appellant's wife and their children were living nomadic lives, it also clearly indicates that their residence and return address is in Port-au-Prince. Furthermore, the Appellant's BoC documentation, but more specifically Annexe A to his Generic Refugee Application,9 indicates that he maintained the same address in Port-au-Prince from the year 2000 until his departure from Haiti in XXXX 2017. That is, he provides no address in Miragoân despite having testified that he went to live there after the XXXX 2017 incident and Question 12 of the Annexe A form requiring him to list all addresses where he has resided since his 18th birthday or in the past ten years. All these circumstances, inconsistencies, contradictions and omissions lead the RAD to conclude that the RPD correctly determined, as the RAD so too finds that the Appellant has not demonstrated that he is a person in need of protection for his personal security or that he will face any different risk that the Haitian population as a whole when he returns to Haiti. For all these reasons, the RAD finds that, pursuant to section 97 (1) of the IRPA, the Appellant is not a person in need of protection. DETERMINATION [24] The Appeal is rejected. The RAD agrees with the correct decision of the RPD and finds the Appellant has not credibly established that he faces the serious possibility of persecution, or, on a balance of probabilities, a personal risk to his life or a risk of cruel and unusual treatment or punishment, or a danger of torture and he is neither a "Convention Refugee" or a person in need of protection pursuant to Sections 96 and 97 of the IRPA. [25] The RAD, therefore, dismisses the appeal and confirms the decision of the RPD, the whole pursuant to paragraph 111 (1) (a) of the IRPA. (signed) Robert Cox Me Robert Cox September 14, 2020 Date RC/tm 1 Immigration and Refugee Protection Act (IRPA) 2 Immigration and Refugee Protection Act (IRPA), s. 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 4 See Tiodunmo v. Canada (Citizenship and Immigration), 2019 FC 1489. 5 Guerrero v. Canada, 2011 FC 1210 para. 27. 6 Denis et al. v. Canada (MCI) 2018 FC 1182. 7 See endnote 3. 8 RPD-1, RPD Record, See endnote 7 of the RPD decision. 9 P-2, Appellant's Record, See document IMM 5669 page 3 of 4 question #12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-03569 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