MB9-01945

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 No. / No de dossier de la SAR : MB9-01945/6/7 Private Proceeding / Huis clos Reasons and Decision ? Reasons and decision Person(s) who is (are) the subject(s) of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision July 26, 2019 Date de la décision Panel Jillan Sadek Tribunal Counsel for the person(s) who is(are) the subject of the appeal Sophia Hippolyte Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX, the principal appellant, and her children, XXXX XXXX XXXX XXXX XXXX (14 years old) and XXXX XXXX XXXX XXXX (15 years old), the minor appellants, are all citizens of Haiti. The principal appellant is her children's designated representative. The children did not testify and their story is not independent of their mother's. The principal appellant alleges that she cannot return to Haiti because she could be targeted by the same criminals who tried to kidnap her and who robbed her in 2011. The Refugee Protection Division (RPD) rejected her refugee protection claim due to a lack of credibility and a lack of prospective risk. As I will explain below, I agree with the RPD that the allegations are not credible and that no prospective risk has been established. [2] The RPD was correct in rejecting the refugee protection claim. The appeal is dismissed. ROLE OF THE REFUGEE APPEAL DIVISION [3] The Refugee Appeal Division (RAD) reviews RPD decisions by applying the correctness standard, after conducting an independent assessment of the evidence before it.1 The exception to this rule is where the RPD enjoys a meaningful advantage in assessing and weighing the oral testimony heard, which may require deference in certain cases. Unless specifically stated below, I have applied the correctness standard. ANALYSIS [4] The appellant alleges that on XXXX XXXX, 2011, three unidentified individuals tried to kidnap her when she was coming back from the airport. According to the appellant, the attempt was unsuccessful thanks to the intervention of passersby. Then, the appellant alleges that on XXXX XXXX XXXX 2011, armed criminals entered her home; they hit her and asked her for money. The appellant states that she gave them the money and they left. After this incident, the appellant decided to leave Haiti. The appellant entered the United States with her visitor's visa on XXXX XXXX, 2011. The children joined their mother in the United States a year later, in XXXX 2012. The principal appellant and her children remained in the United States until they entered Canada on August 17, 2017, and claimed refugee protection. [5] The RPD rejected the appellant's claim for refugee protection due to her lack of credibility and a lack of prospective risk. The RPD noted the following problems with the allegations: a. Twelve days before the hearing, the appellant provided the RPD with an excerpt of the minutes of the peace court registry, dated July 1, 2011, describing the incident of XXXX XXXX, 2011. The appellant explained that she received this document in 2018. She testified that her ex-husband went to the peace court in 2018 to get a second copy because she lost the original, which was issued in 2011, when she was in the United States. However, the document repeats almost verbatim the account in her Basis of Claim Form (BOC Form) signed in September 2017-at which time the appellant allegedly did not have a copy of the excerpt of the registry minutes. The RPD did not accept that the fact that the two documents are so similar is a coincidence. Moreover, the excerpt states that when she asked the police for help, the police were unable to go to her residence because they were out of gas for their vehicle, so they suggested that the appellant seek the help of the peace court to report the incident. This contradicts her BOC Form, in which she simply writes that the police did nothing for her. b. In her BOC Form, the appellant alleges that she left Haiti because her life and the lives of her family had been threatened. However, the appellant left the country in XXXX 2011 without her children. The appellant left her children in Cailles with their paternal grandmother for 13 months, despite the fact that they also had valid United States visas. The appellant testified that her children did not have problems in Cailles. The RPD concluded that this behaviour was not consistent with that of a person fearing for her children's lives. c. The RPD also concluded that even if the appellant's allegations are true, she has not established that she would face a risk described in subsection 97(1) if she were to return to Haiti at this time. The crime she fears is a generalized risk in Haiti. [6] The appellant argues that the RPD's decision is deficient because it was not rigorous in assessing her credibility, it was not objective in assessing the evidence, and its reasons for decision were not consistent. [7] Having listened carefully to the recording of the hearing and read the record, I am of the opinion that the RPD correctly analyzed the appellant's claim, and the determinative issues are the appellant's lack of credibility and the lack of prospective risk. The RPD did not err in its analysis of the appellant's credibility [8] The appellant argues that she gave very credible testimony about the circumstances in which the minutes of the peace court were obtained and, given Maldonado, the RPD should have accepted her explanations. I disagree. [9] The appellant's explanation that her ex-husband obtained a second copy of the document in 2018 fails to explain why the registry minutes and her BOC Form are so similar, since the appellant signed her BOC Form in 2017. [10] The appellant's explanation that her written account in her BOC Form repeats almost verbatim the statements in the registry minutes because these are her own words and her sentences is not credible when considering that she went to the peace court in 2011 immediately after the incident but wrote the account in her BOC Form six years later. It is also not credible because, at the hearing, she initially testified that she used the registry minutes to write her account,2 despite the fact that she could not have done this because she testified that she had lost it in the United States before coming to Canada and was unable to get a new copy before 2018. [11] I agree with the RPD that the appellant's credibility is undermined by the similarity between her written account and the complaint to the peace court, and by the appellant's failure to mention the filing of the complaint in her BOC Form. The RPD did not err in this aspect of its decision. The Refugee Protection Division's reasons were consistent and its assessment of the evidence was objective [12] In her memorandum, the appellant lists three categories of errors made by the RPD. However, she raises only the problem mentioned above and the following problem: [translation] The RPD's assessment of the evidence was not objective. First, the RPD considered the appellant to be a wealthy woman (or perceived her as being wealthy) when this position was used as a justification for rejecting the claim for refugee protection: at page 4 of the RPD decision, the end of the last paragraph states: "you have demonstrated that you are a woman who is financially well off" (emphasis added). Yet, on the following page, the RPD suggests that the appellant did not establish her financial means and the risk of being targeted by kidnappers. The RPD decision states: "I find that you have failed to establish the profile of a person who is at risk due to your perceived wealth."... These contradictions in the RPD's position demonstrate that the appellants did not benefit from an objective analysis of the evidence; accordingly, their appeal should be allowed. [13] It seems that the appellant simply misunderstood the RPD's reasons. There is no inconsistency. When I read these reasons, I understand that the RPD concluded, on a balance of probabilities, that the appellant had financial means in Haiti due to the fact that she travelled often to the United States and even her children had visitor's visas for the United States. I agree with this conclusion, given the information on the record. On the following page, the RPD concludes that the appellant would not be at risk due to the fact that she's perceived as wealthy. However, this does not mean that the RPD does not accept that the appellant is wealthy. It means only that she would not be at risk for that reason, due to a lack of evidence that these same criminals would target her after an absence of over eight years. There is no inconsistency in the RPD's reasons. [14] I concur with the RPD's conclusions that the evidence does not establish a prospective risk for the appellant as a woman due to the fact that she's perceived as wealthy, or that the criminals would target her eight years later. The BOC Form did not err in making such a finding. CONCLUSION [15] In conclusion, like the RPD, I find that the appellant's allegations are not credible due to the inconsistencies and contradictions between her testimony, the documentary evidence and her BOC Form, and, at any rate, no prospective risk has been established. For these reasons, I conclude that the principal appellant, and therefore the minor appellants, since their claims are entirely based on that of their mother, did not demonstrate a serious possibility that they would be persecuted on one of the Convention grounds or that, on a balance of probabilities, they would be personally subjected to a danger of torture, a risk to their lives, or a risk of cruel and unusual treatment or punishment if they were to return to Haiti. DECISION [16] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, the RAD dismisses the appeal and confirms the RPD's determination, namely that the appellants are neither Convention refugees nor persons in need of protection. 'Jillan Sadek' Jillan Sadek July 26, 2019 Date IRB translation Original language: French 1 M.C.I. v. Huruglica, Bujar (F.C.A. No A-470-14), Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93, at para. 103. 2 At about 00:44:00 in the recording of the hearing held on December 20, 2018, the appellant stated: [translation] "I relied on the first document, which I had with me, to write my account." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------