MB8-13693

RAD File No. / No de dossier de la SAR : MB8-13693 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, QC Appel instruit à Date of decision June 20, 2019 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Me Claude Whalen Conseil de la personne en cause Designated representative N/A Représentant(e) designé(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated June 8, 2018, which rejected her claim for refugee protection under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). OVERVIEW [2] The appellant alleges in her written account1 that her husband developed XXXX XXXX XXXX XXXX and died on XXXX XXXX, 2013. After his death, she received threats from her in-laws over the house she inherited. She filed a complaint with the Cayes police on XXXX XXXX, 2013. She claims that the threats continued, and she moved out of her home in 2015. She left Haiti for the United States in 2016 on a visa. In XXXX 2016, she returned to Haiti. She left again for the United States six months later, on XXXX XXXX, 2017. On July 23, 2017, she left the United States for Canada, where she claimed refugee protection. She alleges that she still fears for her life in Haiti. [3] The RPD found that the appellant was not credible with respect to the basis of her refugee protection claim, due to several omissions and contradictions, and her behaviour, which was inconsistent with the alleged risk. The appellant submits that the factors retained by the RPD are insufficient to undermine her credibility. [4] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal and set aside the RPD's determination, or refer the matter to the RPD for re-determination or hold a new oral hearing before the RAD.2 DECISION [5] Following an independent analysis of all the evidence on the record, including the recording of the hearing, I am of the opinion that the RPD did not err in rejecting the appellant's refugee protection claim. [6] The appeal is dismissed. THE ROLE OF THE REFUGEE APPEAL DIVISION [7] The RAD must review the RPD's decision and carry out its own analysis of all the evidence on the record in order to determine, in light of the appellant's arguments, whether the RPD erred. The standard of review for findings of fact, of law, or of mixed fact and law is the standard of correctness. In exceptional cases where the RPD enjoys a real advantage, the RAD can show deference.3 The analysis is therefore conducted on a case-by-case basis.4 [8] I am of the opinion that the applicable standard of review in this case is the standard of correctness.5 THE RIGHT TO AN ORAL HEARING BEFORE THE REFUGEE APPEAL DIVISION [9] The appellant is leaving to the RAD's discretion the question of whether there is a need to hold an oral hearing.6 The RAD may grant an oral hearing only when new documentary evidence has been submitted on appeal, in accordance with the criteria set out in subsection 110(6) of the IRPA. In this case, the appellant is submitting no documents in support of her appeal. Consequently, there is no basis on which to hold an oral hearing. ANALYSIS [10] The appellant criticizes the RPD for basing its decision on factors that are insufficient to undermine her credibility. As explained below, I am also of the opinion that the RPD placed undue weight on certain omissions or contradictions in its non-credibility finding. Contradiction on the reason for the threats [11] The RPD found there was a significant contradiction between the complaint to police about the threats received from her late husband's family and her written account. The complaint advances that since her husband's death, she has been [translation] "the object of persecution and threats from her husband's relatives, accusing her of being responsible for it."7 In contrast, her written account indicates that her in-laws threatened her because of the inheritance he had left her.8 [12] At the hearing, the appellant maintained that she had told her lawyer in Haiti that her in-laws resented her because she had inherited the house. In this regard, I note that the complaint in question was indeed written by her lawyer. According to the appellant, she had called her counsel to share the complaint with him and he then typed it up. Her lawyer then met with the appellant at the Cayes police station to have her sign the complaint before filing it. [13] Given that the complaint is written in French, while the appellant speaks Creole and the appellant did not write the complaint herself, I am prepared to grant her the benefit of the doubt on this point. Failure to mention her move in 2015 [14] The appellant submits that failure to state in her IMM-5669 form that she moved in 2015 is an insufficient reason for doubting her credibility. She submits that refugee protection claimants frequently do not write their official addresses under this question on the form, and that in addition she had referred in her written account to the fact that she had moved in 2015.9 [15] In my opinion, the RPD placed too much emphasis on this omission, given that the appellant had stated in her written account and at the hearing that she had moved in 2015, and that it is reasonable that she would not have considered the new address to be her official address, whence the failure to include it under question 12 in her IMM-5669 form. This does not seem to me to be sufficient to undermine her credibility. [16] In my opinion, it is rather the reason for which the appellant moved, the delay in leaving Haiti, and her return to Haiti in 2017 despite her alleged fear that undermine her credibility with respect to the risk she claims in Haiti, as explained below. The prospective risk in Haiti The delay in leaving Haiti and her return to the country [17] Despite the fact that the appellant claims she received death threats from her late husband's family in XXXX 2013, the appellant only left Haiti in 2016. [18] When asked why she did not leave Haiti before 2016, she replied that that was when she had obtained her visa for the United States and that [translation] "it had not occurred to her before then." [19] Moreover, after she left for the United States, the appellant came back to Haiti in XXXX 2016 and stayed there for six months. When asked why she returned to Haiti, the appellant more or less avoided the panel's questions. First, she replied that she wanted to wait for the election results in the United States, and then finally responded after several questions that her visa had supposedly expired. The reason for her move in 2015 [20] The appellant alleges that after the death threats in March 2013 she continued to live in the same house for two years. The appellant states in her written account that [translation] "The death threats continued, and I moved in 2015."10 At the hearing, however, she changed her story to state that she had not received any other threats from her in-laws since XXXX XXXX, 2013, but that she still, however, felt threatened. [21] When asked why she moved in 2015, she replied that she was pregnant and the father of her child advised her to move elsewhere, because she had high blood pressure due to her stress. This demonstrates, therefore, that the reason for her move was not related to the alleged risk. In addition, the appellant stated that she moved elsewhere in the same city. [22] Finally, there is nothing on the record to indicate that the appellant experienced problems or received threats from her in-laws in the two years following the death threats she received from her in-laws in 2013 or during the six months when she was back in Haiti. [23] For all these reasons, I find that the appellant is not credible with respect to the alleged risk in Haiti. CONCLUSION [24] Under subsection 111(1) of the IRPA, I dismiss some of the RPD's findings related to credibility, but I confirm its determination that the appellant, XXXX XXXX XXXX XXXX XXXX, is not a refugee or a person in need of protection pursuant to sections 96 and 97 of the IRPA. [25] The appeal is dismissed. (signed) Bianca Eleonora Suciu Me Bianca Eleonora Suciu June 20, 2019 Date IRB translation Original language: French 1 Basis of Claim Form, Refugee Protection Division (RPD) record, p. 11. 2 Appellant's memorandum, p. 10. 3 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras. 70-73. 4 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, para. 74. 5 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, paras. 90, 91. 6 Appellant's memorandum, para. 17. 7 RPD record, p. 83. 8 RPD record, p. 11. 9 Appellant's memorandum, paras. 9-12. 10 RPD record, p. 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-13693 RAD.25.02 (April 4, 2019) Disponible en français 6 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