MB8-25919

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 / Dossier de la SAR : MB8-25919 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision October 7, 2020 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the persons who are the subjects of the appeal Jamal Addine Fraygui Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss the appeal. [2] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Haiti. The appellant states that he was subjected to retaliation by the family members of a person he injured in a motorcycle accident in February 2013. In XXXX 2013, the appellant left Haiti for Brazil where he lived until XXXX 2016, when he left the country to go to the United States. He arrived in the United States in XXXX 2016 and applied for asylum there. In January 2017, he stated that he learned that the victim's family was still looking for him to seek revenge. Fearing the Trump administration's policies, the appellant left the United States for Canada in XXXX 2017 to claim refugee protection here. [3] The Minister intervened in the appellant's case to ask that the Convention's exclusion clause in Article 1E be applied to him since he obtained permanent residence in Brazil. [4] The Refugee Protection Division (RPD) decided that since the appellant had left Brazil for more than two years as of the date of the hearing, his permanent status was no longer valid there. The RPD also concluded that the appellant could not return to Brazil and still have his permanent resident status. Although the RPD is of the opinion that the appellant must not be excluded, it rejected the basis of his claim for refugee protection because it found that he was not credible regarding his fear of returning to Haiti. [5] In his memorandum, the appellant points out that the RPD poorly assessed his credibility and was wrong to conclude that he would not be subjected to a risk to his life if he had to return to Haiti. He also argues that the RPD should have applied the presumption of truthfulness. [6] The determinative issue on appeal is the appellant's credibility. ANALYSIS [7] My role is to review all the evidence and establish whether the RPD decision is correct.1 The Refugee Protection Division correctly assessed the appellant's credibility [8] I reviewed all the evidence in my analysis of this appeal, in particular the appellant's testimony, and I am of the opinion that he is not credible. [9] In my view, the RPD was right to find that the appellant was not credible regarding the reasons that allegedly forced him to leave his country because the contradictions and implausibilities that it raised involve determinative issues in his refugee protection claim, and he provided no valid reason to explain them. Contradictions in the appellant's testimony [10] At the hearing, the appellant's testimony on the event underlying his refugee protection claim is contradictory in a number of elements. The appellant starts by stating that, at the time of the accident, there were a number of people injured and that the relatives banded together against him. Later in his testimony, he stated that only one person had been injured, namely a passerby crossing the street, that he did not know this person and that he did not know the extent of the injuries sustained by this person or what had happened to him later. [11] Later in his testimony, the accident victim had a knee and head injury. The appellant offered a third version of the events in his testimony, stating that the victim came out of the accident paralyzed, to justify his statement that family members of the victim were looking for him in Brazil. When asked to explain his contradictions in his testimony, the appellant explained that in Creole, the expressions [translation] "knee injury" and "paralyzed" mean the same thing. In his memorandum, the appellant submits that he did not change his testimony, but he instead testified to the panel using terms that did not have a contradictory meaning. Even in acknowledging that the expressions [translation] "knee injury" and "paralyzed" mean the same thing in Creole, the appellant's argument, as well as his explanations at the hearing, do not explain why in his initial testimony, he indicated that he did not know the nature of the victim's injuries. [12] The RPD correctly found that this contradiction undermined the appellant's credibility. Implausibilities in the appellant's testimony [13] The RPD raised a number of implausibilities in the appellant's testimony. First, the appellant stated that members of the victim's family chased him immediately after the accident, armed with machetes and shotguns. He stated that he took off running and jumped into the car of a family member who was passing by. The RPD found it unlikely that a member of his family would appear by coincidence and drew a negative inference as to the appellant's credibility. [14] The RPD found it just as unlikely that members of the victim's family would persecute him all the way to Brazil, especially when they are farmers. In acknowledging that his persecutors had looked from him in Brazil, the RPD found it unlikely that they would have found the appellant in a country of more than 290 million inhabitants, when they never saw him after the accident. At the hearing and in his memorandum, the appellant stated that he had abandoned his motorcycle after the accident and left a photograph of himself under the seat. He explained that it was through the photograph that members of the victim's family were able to find him in Brazil. [15] The RPD also found it unlikely that the appellant's persecutors would have found him in Brazil, but that they had never been able to find his family, who nevertheless live in the same city in Haiti, since the accident. Nor had they been bothered by the victim's family since the accident. In his memorandum, the appellant indicates that his family would not have been bothered because he, alone, was responsible for the accident. The appellant also points out that the RPD should have mentioned the evidence it relied on to conclude that his family should have had some difficulties after his departure. However, the RPD did not state that the appellant's family should have been the subject of retaliation; it raised that there was an inconsistency, in its view, between the fact that the people who wanted to get back at him would make efforts and put money into finding him in a foreign country, when they did not appear to have been able to find his family who still lived in the same city since the accident [16] In his memorandum, the appellant submits that a panel can only conclude implausibilities in the clearest of cases. He mentions that actions that seem implausible, when judged by Canadian standards, may be plausible when considered in the refugee protection claimant's community. [17] The RPD can draw conclusions based on implausibilities and reject testimony if it is inconsistent with the probabilities of the case as a whole. The test for making such a conclusion is the following: In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.2 [18] The Federal Court also concludes that an adverse credibility finding based on the implausibility of the refugee protection claimant's written account can only be made "in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant."3 [Emphasis added.] [19] I agree with the appellant that when the RPD draws a conclusion based on implausibilities, it must exercise caution and not impose Canadian conduct standards on refugee protection claimants, but in my opinion, this is not what the RPD did in this case. I agree with the implausibilities raised by the RPD because the facts alleged by the appellant "are outside the realm of what could reasonably be expected." [20] For instance, a reasonable person would doubt the probability that a person could find someone else whom the person has seen only once, with the help of a photograph, a number of years later, in a foreign country of more than 209 million inhabitants, covering an area of 8.516 million km2, all on the budget available to a farmer in Haiti. [21] Before concluding that some parts of his testimony were implausible, the RPD shared its reservations with the appellant and gave him the opportunity to explain himself and give further details that could make the inconsistencies that it identified more plausible. For instance, when the RPD asked him how he could be located in Brazil, the appellant answered that he could easily be found by word of mouth. In my view, this answer does not explain this implausibility and does not make his being located more plausible. For example, this does not change the fact that Brazil is a country of 209 million inhabitants covering an area of 8.516 million km2 or that the budget available to a farmer in Haiti is very limited. [22] Lastly, the implausibilities raised by the RPD, when they are put in the broader context of the appellant's case, are among a series of negative conclusions related to the evidence. It was also noted that there was very little evidence that supports the claims of the appellant, such as how his life was at risk in his country of origin at the time of the hearing. [23] The RPD did not err in making a negative finding regarding the appellant's credibility based on the inconsistencies in his testimony. [24] The RPD correctly assessed the appellant's credibility. The Refugee Protection Division did not err in displacing the presumption of truthfulness [25] In his memorandum, the appellant submits that his testimony is presumed to be true and should have been accepted as such. There is indeed a presumption that sworn testimony is presumed to be true, but this presumption can be rebutted. When the refugee protection claimant's evidence raises significant discrepancies and contradictions, the presumption of truthfulness is overturned, and the panel is justified in making adverse credibility findings. [26] The RPD had good reason to doubt the truthfulness of the appellant's testimony, namely because he contradicted himself, and his testimony was riddled with inconsistencies. [27] Beyond the presumption of truthfulness, the Refugee Appeal Division, like the RPD, must have sufficient evidence supporting a claimant's refugee protection claim to allow it. However, in this case, there is not enough credible evidence for me to allow the appeal. The onus was on the appellant, who was represented, to establish the merits of his refugee protection claim, which he did not do. [28] Consequently, the RPD did not err in displacing the presumption of truthfulness. [29] The RPD's decision is correct. The appellant failed to establish that he would be subjected to a serious possibility of persecution, or, on a balance of probabilities, to a risk to his life or to a risk of cruel and unusual treatment or punishment should he return to Haiti. CONCLUSION [30] I dismiss the appeal and confirm the determination that the appellant is not a Convention refugee or a person in need of protection. (signed) Tammy Tremblay Me Tammy Tremblay October 7, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at p. 357. 3 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------