MB8-18467

RAD File No. / No de dossier de la SAR : MB8-18467 MB8-18468 / MB8-18469 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 10, 2019 Date de la décision Panel Me Jolyane Lefebvre Tribunal Counsel for the persons who are the subject of the appeal Me Cliford Dominique Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Gabriele Spina Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellants, XXXX XXXX and XXXX XXXX XXXX XXXX XXXX and their child XXXX XXXX XXXX XXXX, citizens of Haiti, are appealing against the decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The appellants argue that the RPD erred in its finding that the principal appellant failed to prove his identity and was not credible. [2] After a full and independent analysis of the evidence, including the recording of the hearing, I consider that the RPD made a correct decision. [3] The Refugee Appeal Division (RAD) confirms the determination of the RPD, and the appeal is dismissed. BACKGROUND [4] The principal appellant claims that he has co-owned a XXXX XXXX with XXXX XXXX XXXX XXXX since 2004. He alleges that he agreed to guarantee a loan Mr. XXXX obtained from Caisse populaire Socolavim [Socolavim credit union] in 2005. They reportedly agreed that should Mr. XXXX be unable to pay, the principal appellant could use his share of the business to repay the debt. [5] The principal appellant claims that at the maturity date of the loan, Mr. XXXX had not repaid the loan and that he had to pay the amount claimed by the credit union. The appellant states that he consequently claimed his shares in their service station and obtained a judgment confirming that he was henceforth the sole owner of the XXXX XXXX XXXX He claims that at that point, Mr. XXXX conspired with Mr. XXXX, the deputy public prosecutor in St-Marc, to take back XXXX XXXX XXXX. [6] The principal appellant states that in 2010 he was arrested and detained for 14 days due to Mr. XXXX influence and that a court decision was rendered during his absence, after which he was ordered to pay 10 million Haitian gourdes in instalments. [7] The appellants allege that on May 10, 2016, three masked individuals came to their home. The criminals reportedly beat the principal appellant and his spouse and bound the minor child. The same individuals apparently returned the night of August 15, 2016, but the appellants reportedly managed to hide in their yard. They allegedly fled their home to go to Pierre Payen, the village of the female appellant's family. [8] The appellants attribute these events to the dispute between the principal appellant and Mr. XXXX. [9] The female appellant and the minor child base their claims for refugee protection on the principal appellant's Basis of Claim Form (BOC Form). SCOPE OF THE APPEAL [10] The role of the RAD in an appeal against an RPD decision is defined by the Federal Court of Appeal in Huruglica. That being said, in order to examine the RPD's decision, I must determine independently whether the RPD's assessment was correct for each of the errors raised, errors of fact, of law, or mixed fact and law. MERITS OF THE APPEAL Refugee Protection Division's findings [11] The RPD concluded that, on a balance of probabilities, it was not satisfied that the principal appellant had established his identity and that it had no way of really knowing who he was, as the evidence showed two separate identities linked to his fingerprints. [12] It also found that the principal appellant lacked credibility concerning his allegations. It noted the following contradictions and omissions: - The principal appellant testified that during the incident of May 10, 2016, he had spoken with one of the criminals, who had made reference to money owed, and that when the principal appellant asked him what money he was talking about, the criminal stated that it was the money he owed to XXXX XXXX. However, this information is not reported in his BOC Form. - The principal appellant indicated in his affidavit that he was arrested by the police in Haiti on the orders of the deputy public prosecutor, XXXX, in addition to declaring to the Border Services Agency officer that he had been falsely arrested in Haiti. However, he indicated on both of his immigration forms that he had never been arrested, detained and/or sought by the authorities. - The principal appellant provided as evidence a certificate from the Haitian police dated August 30, 2010, stating that he has no criminal record and is not sought by the police, while he declares in his BOC Form and his affidavit that he was detained for 14 days as of June 17, 2010. - The principal appellant testified at the hearing that he did not complain to the authorities following the events of May 10 and August 15, 2016, yet he indicated in his BOC Form that he had filed complaints on two occasions. - The principal appellant stated at the hearing that they found refuge with the female appellant's family in Pierre Payen following the incidents and remained there for nearly four months. However, this information is not in the principal appellant's immigration forms or in that of the female appellant. Appellants' arguments [13] The appellants argue that the RPD erred in concluding that the principal appellant had not established his identity. They maintain that his identity was clearly established by way of his Haitian passports and that the Minister was satisfied as to his identity. With respect to credibility, they argue that the RPD showed insensitivity and erred in its credibility assessment. [14] They argue that the RPD erred in its assessment of their prospective fear should they return to Haiti and failed to consider the fact that there is no internal flight alternative (IFA). ANALYSIS Identity of principal appellant [15] The Minister of Public Safety and Emergency Preparedness (the Minister) filed a notice of intervention with the RPD in which it submits that based on information obtained by the American authorities, the principal appellant filed an application for asylum on June 1, 2001, and on August 7, 2011, under the name of XXXX XXXX XXXX. It also submits that the principal appellant was denied a visa for the United States multiple times under the name of XXXX XXXX. [16] When questioned about this by the RPD, the principal appellant responded that XXXX XXXX XXXX died in 2015 and that he was his former brother-in-law. He stated that he had kept his identity documents with him following his death. When asked about the fact that he declared to the Canada Border Services Agency that he had died in 1993-1994,1 the appellant stated that he actually died in 1995. He went on to explain that he had kept his former brother-in-law's identity documents because his family was too bereft to take back the documents and because he did not think that it would cause any problems for him. [17] When asked about the application for asylum in the U.S. signed by XXXX XXXX XXXX XXXX in August 2000, the principal appellant stated that it was not his signature and that there had been a linguistic misunderstanding between him and the U.S. customs officer. [18] The RPD concluded that it did not accept the appellant's explanation that it was a linguistic misunderstanding and that since his fingerprints were on the documents, it rejected his statement that the applications for asylum in the U.S. were not signed by him. It consequently concluded that there were two identities associated with the principal refugee protection claimant. [19] The appellants argue that [translation] "a passport or identity certificate apparently issued by a competent foreign official is presumed valid,"2 that this presumption had never been rebutted by evidence to the contrary and that the Minister was satisfied as to the principal appellant's identity. [20] They submit further that [translation] "in the absence of a challenge from the RPD that his Haitian passports in his name...are fraudulent, were obtained fraudulently or are presumed fraudulent, the RPD's finding with respect to identity is erroneous."3 [21] I am of the opinion that the RPD did not err in its conclusion that the principal appellant was associated with two identities. After analyzing all the evidence, including the recording of the hearing, I agree with the RPD's conclusions when it found that it was not satisfied on a balance of probabilities that the principal appellant had established his identity. [22] Although I agree with the appellants' argument that there exists a presumption that documents from foreign national authorities, such as passports, are valid, I believe that this is insufficient to conclude that the principal appellant is who he claims to be, notably due to the fact that the principal appellant's fingerprints are linked to two identities. [23] I also cannot accept the arguments submitted before the RPD with regard to the linguistic misunderstanding with the American authorities. The evidence shows that the application for asylum in the U.S. signed by Mr. XXXX but associated with the principal appellant's fingerprints is detailed and accompanied by a four-page account. I consequently cannot accept that the application for asylum in the U.S. is based on a misunderstanding. [24] Moreover, I do not agree with the appellants' argument in addressing the issue of whether the passports are fraudulent or were obtained fraudulently. That is not at issue in this case, but rather the fact that the principal appellant's fingerprints are linked to two identities, whereas the appellant denies using any identity other than that of Mr. XXXX. That being said, I conclude that the RPD did not err and that the principal appellant was unable to prove or establish his identity. Appellants' credibility - Omission concerning event on May 10, 2016, as reported to the RPD by the principal appellant [25] At the hearing, the principal appellant indicated that on May 10, 2016, while criminals were at his home, one of them referred to the money he owed to XXXX XXXX. When asked why this information was not in his BOC Form, the appellant responded that he had [translation] "reported the main facts at the airport"4 and had intended to provide the details at his hearing. [26] The RPD found this to be important information that it could have expected to find in the appellant's BOC Form as well as in his affidavit. In addition, it argued that he stated in his affidavit that he had reason to believe that the incident had been ordered by Mr. XXXX and Mr. XXXX, whereas he claimed that one of the criminals told him so directly. It also rejected the principal appellant's argument that he had intended to provide all the details at the hearing, as the BOC Forms contain many details. It consequently found that the credibility of the appellants' allegations concerning harm caused by Mr. XXXX and Mr. XXXX is undermined. [27] The appellants did not submit any arguments concerning this omission in their memorandum. [28] I am of the opinion that the RPD did not err in finding that this omission from the appellants' BOC Forms undermines their credibility, particularly since it contradicts the information in the principal appellant's affidavit to the effect that [translation] "he had reasonable grounds to believe" that the incident on May 10, 2016, had been ordered by Mr. XXXX and Mr. XXXX. In my opinion, the fact that a criminal told him that he was looking for the money owed to Mr. XXXX constitutes more than "reasonable grounds to believe" that the incident was related. This undermines the appellants' credibility. - Omission concerning his arrest by police in Haiti [29] The principal appellant indicated in his affidavit that he was arrested by the police in Haiti, in addition to declaring to the Border Services Agency officer that he had been falsely arrested in Haiti. However, he indicated on both of his immigration forms5 that he had never been arrested, detained and/or sought by the authorities. When asked about this omission, the appellant responded that he was unable to answer the questions and that if someone had asked him what colour the sky was, he would have stated red. He also responded that he feared being deported if he stated yes. [30] The RPD rejected the principal appellant's explanations and found that he [translation] "should have systematically indicated on his immigration forms that he had been sought, arrested and detained by the Haitian police."6 It also found that in light of the uniformity of his other responses on his immigration forms, it would have expected the appellant to remain consistent [translation] "with regard to something of such importance."7 In addition, it found that if the principal appellant had been [translation] "in such a state during questioning that he would have responded that the sky was red...he would not have had the presence of mind to rationalize that he could be deported if he stated yes."8 It found that his credibility was further undermined. [31] The appellants submit that the RPD drew a negative inference from the contradictory responses and erred, [translation] "in that cultural factors, the stress associated with any refugee protection claim, the limited schooling and the stress of having to respond orally to questions at a hearing are difficulties that the panel should take into consideration."9 [32] I am of the opinion that the RPD did not err. In my opinion, the principal appellant's failure to indicate on his immigration forms that he had been illegally arrested by the police in Haiti undermines his credibility. The principal appellant claims that he was sought, arrested and detained illegally on orders from Mr. XXXX. This is an important event constituting a key element of his claim for refugee protection, and I believe that the panel could have expected him to indicate it on all his forms. [33] I cannot accept the argument submitted by the appellants in their memorandum. While a hearing may be viewed as a stressful event by a refugee protection claimant, I cannot conclude from listening to the recording of the hearing that the RPD failed to consider these various factors or that the appellant was unable to respond to the member's questions. [34] In addition, the fact that the appellant responded that he was not in a state to respond properly to the questions on the immigration forms and then adjusted his testimony and responded that he feared disclosing that he had been arrested, which is an important element of his claim for refugee protection, undermines his credibility. - Contradiction concerning information in the police report [35] The principal appellant submitted as evidence a certificate from the Haitian police dated August 30, 2010, stating that he has no criminal record and is not sought by the police, while he declared that he had been detained for 14 days in June 2010. When asked about this, the principal appellant responded that this document served only to show that he owned a service station and that his case against Mr. XXXX had not yet begun. [36] The RPD found that in light of the fact that the principal appellant alleges he was detained in June 2010, he [translation] "was consequently unable to obtain a police certificate, at the national level, to confirm that he did not have a criminal record and had never been sought by the police."10 It consequently found that the credibility of the appellants' allegations concerning harm caused by Mr. XXXX and Mr. XXXX was further undermined, and it did not give any probative value to the principal appellant's affidavit or to the police certificate. [37] The appellants did not submit any arguments in their memorandum concerning this contradiction. [38] I am of the opinion that the RPD did not err in finding that this undermined the appellants' credibility and in according no probative value to the principal appellant's affidavit or police certificate. I am of the opinion that since the appellant alleges that he was sought, arrested and detained in June 2010, this information should normally have been included in the certificate dated August 30, 2010. Moreover, the fact that the appellant indicated that his case against Mr. XXXX had not yet begun, yet stated in his affidavit that he had been arrested for a few days after June 17, 2010, seriously undermines his credibility. - Contradiction concerning complaints to authorities [39] The principal appellant testified at the hearing that he did not complain to the authorities following the incidents on May 10 and August 15, 2016, yet he indicated on his BOC Form that he had filed complaints on two occasions and that the police that told them that they would investigate the matter. When asked about it, the principal appellant responded that he had contacted the police but that they had not done anything. The female appellant added that she had contacted the police following the incident on May 10, 2016, but that [translation] "it was like doing nothing, because they never came."11 [40] The RPD found that the appellants [translation] "should have recalled during testimony that they had complained to the police about their situation on two occasions."12 It also rejected the principal appellant's explanation when he stated that [translation] "no complaint had been filed with the police because they had done nothing,"13 noting that the outcomes do not change anything about the appellants' actions. It found that the credibility of the appellants' allegations was undermined. [41] The appellants did not submit any arguments in their memorandum concerning this contradiction. [42] I am of the opinion that the RPD did not err in finding that their credibility was undermined. The recording of the hearing indicates that the principal appellant responded no14 when asked directly by the RPD member if he had filed a complaint concerning the incidents on May 10 and August 15. In my opinion, in light of the fact that the appellants indicated in their BOC Forms that they had contacted the police following the two incidents and that the police had confirmed that they would investigate, the panel could have expected the appellants to state this information at the hearing. The fact that they attribute this contradiction to the police's failure to act does not in any way explain this contradiction and, for this reason, undermines their credibility. - Omission of address in Pierre Payen on IMM-5669 form [43] At the hearing, the principal appellant stated that they found refuge in Pierre Payen. The appellants also noted this information in their BOC Forms, indicating that they lived there from May 2016 until they left the country in late XXXX 2016. However, this information is not provided on immigration form IMM-5669. When asked about this omission, the principal appellant stated that he did not consider that he had lived in Pierre Payen because he had simply found refuge there.15 He also explained that Pierre Payen was not a city but rather an [translation] "outlying area" and that his official city was St-Marc.16 [44] The RPD found that since the appellants lived in Pierre Payen for four months, it could have expected them to include this information on their immigration forms. It also indicated that this form requires all addresses where a person has resided in the last 10 years to be listed, not the official addresses. It therefore concluded that the appellants' credibility was undermined. [45] The appellants did not submit any arguments in their memorandum concerning this contradiction. [46] I consider that the RPD's decision is correct. While this is not a determining factor, I believe that the panel could have expected the appellants to include the address in Pierre Payen in the immigration form, particularly since they found refuge there as they feared for their lives. [47] That being said, as a whole, these reasons lead me to find that the appellants are not credible and have not established that the RPD erred. Prospective risk and country conditions [48] After noting that [translation] "Canadian case law has established that the risks identified in documents on country conditions are insufficient to establish that the claim for refugee protection is well-founded,"17 the RPD concluded that the appellants had not demonstrated how these conditions applied to their personal situations. [49] In their memorandum of appeal, the appellants submit that [translation] "gangs are able to trace their target's whereabouts"18 and cite tab 7.3 of the National Documentation Package on Haiti dated 18 June 2015, which indicates that Haiti is a small country and that there is no prescription for acts of revenge or jealousy in Haiti. [50] I agree with the appellants that the documentary evidence states that there is no prescription for acts of revenge or jealousy. However, this documentary evidence is insufficient to satisfy the burden of proof that rests on the appellants. The principal appellant must therefore establish that the risk he faced in the past still exists. Since I found that the principal appellant is not credible and that he has failed to provide any details indicating that the risk he faced in the past still exists, I am of the opinion that he cannot presume that the acts of revenge will automatically continue. Internal flight alternative [51] In their memorandum of appeal, the appellants argue that they are at risk of persecution if they were to return to Haiti and state that [translation] "the RPD failed to consider the impossibility of finding an internal flight alternative for the appellants when it must do so despite its credibility findings."19 [52] With respect for the appellants, I am of the opinion that the RPD did not err and that its decision was correct. The determinative issue in this case is the appellants' credibility. Following my independent analysis, I agree with the RPD that the appellants are not credible concerning important facts alleged in support of their claim and I believe that the RPD did not err by failing to address internal flight alternatives as it deemed them not to be credible and that, this being said, it is therefore not necessary to address the appellants' arguments concerning IFA in this appeal. CONCLUSION [53] For these reasons, the RAD confirms the determination of the RPD and concludes that XXXX XXXX, also known as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither "refugees" within the meaning of section 96 of the IRPA nor "persons in need of protection" pursuant to section 97 of the IRPA. [54] The appeal is dismissed. (signed) Jolyane Lefebvre Me Jolyane Lefebvre September 10, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) document, pages 627/691. 2 Appellants' memorandum, paragraph 7. 3 Appellants' memorandum, paragraph 9. 4 Recording of the hearing of August 1, 2017, 1:42:16. 5 Forms IMM-5669 and IMM-0008. 6 RPD decision, paragraph 45. 7 RPD decision, paragraph 46. 8 RPD decision, paragraph 47. 9 Appellants' memorandum, paragraph 19. 10 RPD decision, paragraph 54. 11 Recording of hearing of January 19, 2018, 2:36:22. 12 RPD decision, paragraph 58. 13 RPD decision, paragraph 59. 14 Recording of hearing of January 19, 2018, 2:35:36. 15 Recording of hearing of January 19, 2018, 2:30:50. 16 Recording of hearing of January 19, 2018, 2:32:44. 17 RPD decision, paragraph 71. 18 Appellants' memorandum, paragraph 26. 19 Appellants' memorandum, paragraph 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-18467 MB8-18468 / MB8-18469 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français