MB8-13508

RAD File No. / No de dossier de la SAR : MB8-13508 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, Quebec Appel instruit / entendu à Date of decision June 17, 2019 Date de la décision Panel Me Bianca Eleonora Suciu Tribunal Counsel for the person who is the subject of the appeal Me Gisela G Barraza Conseil de la personne 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, a citizen of Haiti, is appealing against the decision of the Refugee Protection Division (RPD) dated May 23, 2018, rejecting his refugee protection claim filed under sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA). OVERVIEW [2] The appellant alleges in his amended Basis of Claim Form1 (BOC Form) that in 1996 and 1997, he was threatened by supporters of the Unité [unity] political group because he opposed their political ideologies. In late XXXX 1997, members of that group went to his home to threaten him, but his neighbours stopped them from harming him. [3] The appellant decided to leave Haiti for the Turks and Caicos Islands in XXXX 1998 because the threats had gotten worse. According to his testimony, the appellant returned to Haiti two or three times a year between 1998 and 2010. In 2010, the appellant returned to Haiti hoping that he had been forgotten, but that was not the case. [4] When he returned, he decided to open a XXXX XXXX in Cap Haïtien, but a group of Unité party supporters always gathered at the XXXX entrance, which intimidated his customers. The appellant complained and sternly asked them to leave. They then decided to seek revenge against him. [5] They told the appellant that they would destroy him and his business. In XXXX 2011, the appellant allegedly filed a complaint with the police, but nothing came of it. In late XXXX 2011, six members showed up at his XXXX XXXX and started throwing stones, ransacking his business and making death threats against him. His customers saved him. A report was made about the attack. However, according to him, the police have no power over these people. [6] The appellant decided to leave Haiti on XXXX XXXX, 2011, to seek refuge in the United States. He claimed asylum there, but his claim was refused. On August 6, 2017, fearing deportation, the appellant left the United States and came to Canada, where he claimed refugee protection. [7] He alleges that, according to information from his family, the members of this political group are still looking for him and he could be killed if he returns to Haiti. He also alleges that he is at risk of being attacked by criminals because he has lived abroad and could be perceived as having money. [8] The RPD found that the appellant lacked credibility about the basis of his refugee protection claim because of several serious contradictions and omissions. The appellant argues that the points identified by the RPD are insufficient to undermine his credibility and that the RPD did not consider all of the evidence on the record. [9] The appellant is asking the Refugee Appeal Division (RAD) to allow the appeal and set aside the determination or refer the matter to the RPD.2 [10] Having carried out an independent analysis of all of the evidence on the record, including the recording of the hearing, I cannot confirm or set aside the RPD's determination without holding another oral hearing on the issue of an internal flight alternative in Haiti. [11] Consequently, I must refer the matter to the RPD for re-determination. ROLE OF THE REFUGEE APPEAL DIVISION [12] The RAD must review the RPD's decision and conduct its own analysis based on all of the evidence on the record to determine, in light of the appellant's arguments, whether the RPD erred. The standard of review for findings of fact, of law or mixed fact and law is the standard of correctness. In certain exceptional cases where the RPD enjoys a meaningful advantage, the RAD will show deference.3 This is therefore a case-by-case analysis.4 [13] The appellant refers to the Federal Court's decision in Huruglica regarding the standard of review applicable to the RAD but does not specify the applicable standard in this case.5 [14] I find that the applicable standard of review in this case is the standard of correctness.6 ANALYSIS [15] The appellant essentially argues that the RPD breached the principle set out by the Federal Court in Maldonado by unreasonably discarding his testimony.7 Membership of the agents of persecution [16] Specifically, the appellant criticizes the RPD for rejecting his explanation regarding the link between the Unité party and Lavalas, notably that René Préval, the founder of Unité, used to be a member of the Lavalas party. He argues that, as a result, his explanation that his attackers were members of one of the two parties was not unreasonable.8 He adds that the documentary evidence corroborates his explanation9 and that the RPD erred by not considering the evidence in its entirety.10 [17] In my opinion, the RPD correctly assessed the appellant's evidence and the documentary evidence on this matter, but it discarded the appellant's testimony because it lacked credibility. According to the documentary evidence, the Unité party was established by René Préval in 2009, following the dissolution of the Fwon Lespwa party.11 Therefore, the Unité party did not exist when the events alleged by the appellant occurred, that is, before he left for the Turks and Caicos Islands in 1998. [18] At the hearing, the RPD tried to clarify whether, in 1998, the appellant's attackers had in fact been identified as members of the Unité party. The appellant answered that they had. When confronted with the documentary evidence indicating that the Unité party had only been formed in 2009, the appellant was unable to name the party that existed before 2009. He merely answered that Préval had assumed power in 1996 and formed his own political party, but that he had previously been a member of Lavalas. [19] I agree with the RPD that the appellant's explanation is not satisfactory, even though the panel considered [translation] "the witness's age, culture, origin and social background" as requested by the appellant.12 [20] The appellant states in his amended BOC Form that [translation] "around 1996 and 1997, this group was really fixated on me, all they did was harass me because they knew that I still opposed the political ideologies that they supported and how they presented them to others"13 (emphasis added). [21] That suggests that the appellant was knowledgeable about and aware of this political group's ideologies. According to him, he was able to formulate opinions and criticize their political platform. In his opinion, that was the root cause of his problems before he left for the Turks and Caicos Islands. It is therefore hard to believe that the appellant could not name the party that existed at the time and that three of his attackers belonged to, even though the RPD asked multiple questions about it. In my opinion, the RPD was justified in drawing a negative credibility inference on that basis. Amendment to his Basis of Claim Form [22] The appellant also criticizes the RPD for placing too much importance on the addition he made to his BOC Form regarding the fact that the attackers threw stones at his business.14 [23] The claimant amended his BOC Form as follows: Around the end of XXXX 2011, the members of this group-six in total-came to my XXXX XXXX and started telling us that it needed to end. I thought they had come to kill me throwing stones at my business. They also threatened to kill me and ransacked my business. My customers defended me and told them that it was not possible and to leave me alone. They eventually left my XXXX XXXX. [24] I agree with the appellant that the amendment merely adds details about an incident that the appellant had already mentioned in his original BOC Form. In my opinion, the RPD placed too much importance on this point when assessing his credibility. Justice of the peace's report [25] Finally, the RPD made a negative credibility finding based on the justice of the peace's report about the incident in XXXX 2011 because the complaint was dated 2010. I agree that such a flagrant error in a legal document casts doubt on the genuineness of that document, and I cannot trust it. [26] However, I conclude that these problems are insufficient to find that the appellant's entire story or his risk is not credible. [27] Although the appellant could not satisfactorily explain his attackers' political affiliation in 1988 and, as a result, his credibility was undermined with respect to the threats allegedly made against him at that time, the fact remains that in 2010-2011, the appellant faced another risk. [28] I must point out the appellant's allegations in paragraphs 10 to 18 of his amended BOC Form to the effect that the problems he had in 2010 and 2011 were largely rooted in the fact that he criticized the group of Unité party supporters for gathering in front of his business, which according to him intimidated his customers. The appellant argues that it was when he asked them to leave that the group decided to seek revenge against him. In my opinion, the motivation of the agents of persecution and the risk to the appellant are different from those alleged in 1998, and I do not find that the appellant's credibility on this point was undermined by the problems mentioned above. [29] Consequently, I find that a more thorough analysis, especially of the internal flight alternative in Haiti, is needed before the appellant's refugee protection claim can be allowed or rejected. Given that this issue was not addressed at the hearing, I cannot rule on it. I determine that the matter must be referred to the RPD so that this issue can be decided. Perception of wealth [30] I agree with the RPD's finding that the appellant's risk of being targeted on his return to Haiti because he has lived abroad and could be perceived as having money is a matter of generalized criminality in Haiti, and the appellant did not establish a personalized risk in this regard.15 Moreover, the appellant is not challenging this finding. CONCLUSION [31] Under paragraph 111(1)(c) of the IRPA, I refer the matter to the RPD for re-determination by another member. (signed) Bianca Eleonora Suciu Me Bianca Eleonora Suciu June 17, 2019 Date IRB translation Original language: French 1 Refugee Protection Division (RPD) record, pp. 27-31. 2 Appellant's memorandum, p. 36. 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 Appellant's memorandum, p. 30, paras. 1-7. 6 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, paras. 90, 91. 7 Appellant's memorandum, p. 31, paras. 10, 11, p. 32, para 10. 8 Appellant's memorandum, p. 32, paras. 10-11. 9 Appellant's memorandum, p. 32, paras. 12, 13. 10 Appellant's memorandum, p. 34, paras. 14-16. 11 National Documentation Package on Haiti, March 29, 2019, Tab 4.15: Haïti : Les principaux partis politiques [Haiti: main political parties]. France. Office français de protection des réfugiés et apatrides [French office for the protection of refugees and stateless persons]. December 12, 2016, p. 6, 12. 12 Appellant's memorandum, para. 8. 13 RPD record, p. 28. 14 Appellant's memorandum, p. 33, paras. 16-18. 15 RPD decision, paras. 45-53. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-13508 RAD.25.02 (April 4, 2019) Disponible en français 5 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