MB8-03860

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 : MB8-03860 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person(s) who is(are) the subject(s) of the appeal XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision December 4, 2018 Date de la décision Panel Me Zofia Przybytkowski Tribunal Counsel for the person(s) who is(are) the subject(s) of the appeal Me Brigitte Objois Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX XXXX XXXX (the appellant), a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated January 31, 2018. OVERVIEW [2] The appellant is alleging that she fears being subjected to persecution in Haiti by reason of her political opinion. The RPD rejected her claim for refugee protection on the ground that it was not credible. The appellant maintains that she gave credible testimony, with no significant contradictions, and that her behaviour was consistent with that a person who fears for their life. After analyzing the entire record, I find that the appellant gave credible testimony as regards the determinative aspects of her claim, and I allow the appeal. DETERMINATION [3] The appeal is allowed. Pursuant to subsection 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that the appellant is a Convention refugee. BACKGROUND [4] The appellant alleges that she was a member of the Association du peuple de Bolosse (APB) [association of the people of Bolosse], which supports candidate Moise Jean-Charles and the Pitit Dessalines party, and opposes the regime of the party in power, the Parti haïtien Tèt Kale (PHTK). She participated in a large APB gathering on May 18, 2015, in the run-up to the elections in November 2015. [5] In XXXX 2015, a member of the APB was beaten to death. In November 2015, Moise Jean-Charles was not elected, and the APB mobilized to protest against the fraudulent election of Jovenel Moise. On XXXX XXXX, 2016, a cousin of the appellant's, who was also a member of the APB, was beaten. The appellant's XXXX XXXX XXXX, who turned out to be a member of the PHTK, telephoned the appellant to threaten her. In XXXX 2016, she was threatened in person by her XXXX XXXX XXXX and a knife was thrown in her direction as she was on her way to work. [6] The appellant left Haiti for the United States on XXXX XXXX, 2016, and then left for Canada on May 5, 2017. [7] The RPD found that the appellant was not credible because she did not spontaneously indicate, at the beginning of the hearing, that she feared persecution by reason of her membership in the APB. The RPD also found that her answers to the question about the moment when the problems that led to her fear of persecution began were contradictory. Finally, the RPD noted a contradiction between the appellant's story and her immigration forms, which do not indicate any membership in an association or political organization. New evidence and hearing [8] The appellant is not submitting any new evidence in support of her appeal and is not requesting that a hearing be held. Thus, no new evidence is accepted and the RAD does not have the authority to convene a hearing for this appeal. Role of the RAD [9] For questions of fact, of law and of mixed fact and law, the RAD applies the standard of correctness.1 Unless indicated otherwise in my reasons, I have applied the correctness standard to all the findings, and I will assess the overall decision in this refugee protection claim according to the standard of correctness. ANALYSIS Reason for fear [10] The appellant maintains that she did not neglect to mention the reason why she risks being mistreated, but rather, that she misunderstood the question asked by the RPD. In fact, the RPD first asked her what she feared if she were to return to Haiti. The appellant replied that she feared being beaten, raped or killed. Asked to specify why she feared this type of mistreatment, the appellant replied that she was young and wanted to live. [11] After listening to the appellant's testimony, it seems her answer reveals that she had not understood what the question meant. She answered by explaining why she feared death, but the RPD expected her to explain on what grounds she could be mistreated, i.e., her membership in the APB. When the RPD confronted her with what it perceived to be an omission, the appellant clearly indicated that she had not understood the question. [12] Although her answer might appear surprising and unusual in comparison with the way other claimants may have answered, it is not inconsistent. Each claimant is unique and may interpret a question differently when that question is general. Before concluding that the appellant made an omission, the RPD should have asked more specific questions, i.e., whom the appellant feared, and why those people would want to go after her. The RPD therefore erred in too hastily concluding that there had been an omission. Beginning of problems [13] The appellant is challenging the finding that she contradicted herself when the RPD asked her when her problems started. She maintains that her story contains several incidents that occurred between May 2015 and May 2016, and that several of these incidents may be considered as the beginning of her problems. I agree with the appellant. I find that the RPD asked the appellant a vague question that could be answered in several ways. However, the RPD expected a specific answer: the date when the telephone threats began. [14] When asked when her problems began, the appellant first answered: in XXXX 2015, after the gathering-referring to the first significant incident in her story. The RPD then asked her to specify when the problems began for her personally, to which she replied by recounting the incidents that occurred near her place of work in XXXX 2016, when she was threatened directly and physically. However, she specified that other members of the APB had been attacked before she was. [15] Asked to specify why she did not refer to the beginning of the telephone threats in XXXX 2016 as the beginning of her problems, the appellant explained that the incidents of XXXX 2016 were those that led to her decision to leave the country. [16] Although the appellant did not give the RPD the exact answers it expected, I find that the specifications and explanations she gave to explain her way of answering are reasonable, and that, on the whole, there was no contradiction. Contradiction regarding membership in an association [17] The appellant maintains that the RPD gave too much weight to the fact that she neglected to mention her membership in the APB on her immigration forms. Rather, she wrote: [translation] "Nil."2 When confronted with this matter by the RPD, the appellant explained that she had been housed at the Montréal Olympic Stadium in the summer of 2017 and that she had completed her forms there without the assistance of counsel. She explains that she misunderstood the question. [18] In principal, it is not an error for the RPD to conclude that such a contradiction undermines the appellant's credibility. However, considering that I found that the RPD erred in concluding that the appellant lacked credibility, this is the only contradiction that remains and it is not sufficient in and of itself to rebut the presumption of credibility in favour of the appellant. Behaviour inconsistent with a fear [19] The appellant argues that her behaviour is consistent with that of a person who fears for their life, because she claimed asylum as soon as she arrived in the United States. The RPD questioned the appellant about this matter but did not make negative findings regarding the appellant's credibility as regards this issue. I agree that doing so is not appropriate. [20] The appellant submitted a document demonstrating that she claimed asylum in the United States.3 Although she abandoned that claim in order to come to Canada, I do not draw a negative conclusion regarding her credibility as regards her fear for this reason. In this case, this is not a determinative factor. General credibility [21] When the appellant testified about the training and objectives of the APB, as well as about its activities, she did so spontaneously, with detail, and without contradiction. She explained that she participated in the association's activities in Port-au-Prince even though she lived and worked in Cap-Haïtien. She also made a list of schools in Cap-Haïtien where she went to meet young people in order to promote the ideas of the APB and of Moise Jean-Charles. The appellant recounted in detail and without hesitation each of the incidents that led to her fear and her decision to leave the country. [22] Accordingly, I find that the appellant testified in a manner that was credible and trustworthy. State protection and internal flight alternative [23] The evidence is unequivocal as regards the fact that state protection in Haiti is inadequate, and that the police are not able to protect most citizens.4 Moreover, it indicates that law enforcement agencies have committed abuses against activists with the Pitit Dessalines party,5 supported by the APB. [24] Moreover, the evidence on the record demonstrates that the appellant began her involvement with the APB when she lived in Port-au-Prince, and she continued to be involved in it when she lived in Cap-Haïtien, while commuting to Port-au-Prince each week. No other internal flight alternative was explored by the RPD. Considering that the PTHK is the party in power, that one of the people who threaten the appellant is a member of her family, and that they were able to identify her place of work in Cap-Haïtien, I find that they would have an interest and the means to find her in all the large cities in Haiti. Accordingly, I find that, in this case, there is no internal flight alternative for the appellant. CONCLUSION [25] The appeal is allowed. Pursuant to subsection 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that the appellant is a Convention refugee. Zofia Przybytkowski Me Zofia Przybytkowski December 4, 2018 Date IRB translation Original language: French 1 M.C.I. v. Huruglica, 2016 FCA 93, paras. 70 and 103. 2 RPD record, p. 67. 3 RPD record, p. 113. 4 National Documentation Package (NDP) on Haiti, October 20, 2017, Tab 10.2, Haiti: Protection provided by the police and effectiveness of the police, particularly in Port-au-Prince, Cap-Haïtien, Jérémie, Les Cayes and Gonaïves (2014-June 2015), p. 5. 5 NDP on Haiti, October 20, 2017, Tab 4.21, Haiti: The Pitit Dessalines [Pitit Desalin] political platform, including its establishment, structure, founding members and leaders, as well as its program; whether the platform issues membership cards; whether the party's candidates ran in municipal, legislative and presidential elections and, if applicable, those who were elected; the treatment of its members by the authorities (2014-July 2016), pp. 9-10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-03860 RAD.25.02 (April 24, 2018) Disponible en français 7 RAD.25.02 (April 24, 2018) Disponible en français