MB9-19158

RAD File No. / No de dossier de la SAR : MB9-19158 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision June 23, 2020 Date de la décision Panel Anne Revil Tribunal Counsel for the person who is/are the subject of the appeal Rachel Benaroch 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 OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX XXXX is a Haitian citizen. [2] He arrived in Canada on XXXX XXXX, 2017, from the United States. He claimed refugee protection stating that he had been attacked and threatened in 2012 and 2014 in his country because of his outspoken support of the Lavalas party during his XXXX XXXX. [3] His claim was rejected by the Refugee Protection Division (RPD) in a decision on August 8, 2019, on the basis that his allegations were not credible. [4] He is challenging the RPD's decision on the basis that: - The death threats he mentioned in his Basis of Claim Form (BOC Form) and in his testimony were not taken into consideration by the RPD. - It is highly plausible that someone who criticizes the government on the XXXX would receive death threats, which is corroborated by document RIR HTI105172FE, and which the RPD failed to consider. - The RPD erred by not accepting his explanation (clerk's error) for the contradiction in the number of attackers on XXXX XXXX, 2012, and the difference between the logos. - With regard to the negative conclusion drawn from the time spent in hiding, these events occurred more than 14 years ago and the RPD must determine whether the appellant has a well-founded fear of persecution at the time of the hearing. - While he initially incorrectly stated that he had applied for the second visa for Brazil after the attack, he then corrected himself and specified that he had applied for it before the attack but had decided to move to Brazil after. - The RPD could not dismiss all of his allegations, there were no contradictions in any of the events from 2014. [5] He adds in his affidavit that at the hearing when he stated that he had not seen his attackers on XXXX XXXX, 2012, he meant that he did not know them. DETERMINATION [6] The appeal is allowed. Mr. XXXX XXXX XXXX is a refugee. ANALYSIS [7] The Refugee Appeal Division (RAD) carried out its own analysis of the record and all of the evidence. It listened to the recording of the hearing. [8] Mr. XXXX XXXX XXXX states that he is a supporter of the Lavalas party and that he would speak about his beliefs when working in XXXX XXXX XXXX as a XXXX XXXX from 2008 to 2012. He hosted a XXXX XXXX show every XXXX and XXXX from XXXX XXXX XXXX p.m. to XXXX XXXX XXXX p.m. [9] On XXXX XXXX, 2012, he received threats over the telephone during the XXXX XXXX and was then assaulted by a group of individuals when he was leaving the XXXX XXXX. They told him he would die if he continued to XXXX XXXX XXXX. During the night, a group of individuals shot at his house, where he hid under a bed with his wife and children. He left his country for Brazil on XXXX XXXX XXXX 2012, and returned in XXXX 2014. [10] He then resumed work at the XXXX XXXX. On XXXX XXXX, 2014, XXXX days after a XXXX XXXX with the XXXX XXXX XXXX XXXX XXXX, one of his friends warned him not to go home that night. He therefore hid at a friend's house with his family, and that same night his house was shot at. He left the country on XXXX XXXX, 2014. [11] Mr. XXXX XXXX XXXX explains that these attacks are related to him expressing his pro-Lavalas views and that he cannot move back to Haiti because he would resume his XXXX work there, share his pro-Lavalas opinions and once again become a target of the government's supporters. On the fact that Mr. XXXX XXXX XXXX was a XXXX XXXX [12] The RPD concluded that Mr. XXXX XXXX XXXX had established he was a XXXX XXXX in Haiti from 2008 to 2012 and once again in 2014. [13] The RAD shares this conclusion. On the attack on the night of XXXX XXXX, 2012 On the contradiction between the number of attackers during the attack on the night of XXXX XXXX, 2012 [14] The RPD committed an error in concluding that the fact that Mr. XXXX XXXX XXXX stated at the hearing that he had been attacked by five people on XXXX XXXX XXXX 2012, whereas the extract of the minutes of the registry of the peace court in the commune of XXXX XXXX XXXX describing this attack mentions three attackers undermines the credibility that this event occurred. [15] When asked about this contradiction, Mr. XXXX XXXX XXXX stated that the registry may have made a mistake and that the judge is the one who goes to conduct the investigation that provides the material for writing the extract of the minutes of the registry and then tells the clerk what to include in the extract, but that it is written at a later time. [16] The RAD is of the opinion that this explanation is reasonable. On the conclusion relating to the fact that he saw the attackers during the attack on XXXX XXXX, 2012 [17] In the extract of the minutes of the registry from XXXX XXXX, 2012, Mr. XXXX XXXX XXXX states that [translation] "the people before me seemed like strangers. The ones who attacked my house yesterday were all wearing masks when I looked out the window." [18] He thus appears to make a distinction between the two groups of attackers: those who attacked him in the evening when he was leaving the XXXX XXXX, whom he did not know, and the group who shot at his house, whom he saw through the window and whose faces were covered. [19] At the hearing, when asked if he had seen the people who shot at his house, he replied [translation] "No, I was inside, they were outside." When then asked about the contradiction between this reply and the extract of the minutes of the registry in which he states that he saw through the window that they were all wearing masks, he replied that out of curiosity he looked out of the bedroom window and saw armed people. In his affidavit, he explains that when he stated that he did not see them, he meant that he did not know them. [20] However, this explanation is not credible because he first explained that he had not seen them because he was inside and they were outside, therefore it was impossible to see them, which has no connection to seeing someone but not knowing them. [21] This contradiction undermines the appellant's allegations with regard to this event. On the conclusion relating to the masks [22] Mr. XXXX XXXX XXXX is not challenging the negative conclusion drawn by the RPD from the failure to mention that his attackers were wearing masks on the night of XXXX XXXX, 2012. While in the extract of the minutes of the registry, Mr. XXXX XXXX XXXX states that his attackers were wearing masks, he failed to mention it at the hearing even though he was asked twice whether the attackers were wearing anything in particular. [23] This omission undermines his allegations with regard to this event. On the conclusions regarding the time spent in hiding [24] The RPD committed errors by drawing two negative conclusions regarding this period. [25] Mr. XXXX XXXX XXXX states in the extract of the minutes of the registry from October 5, 2014, that [translation] "in 2004, when Lavalas fell from power, I went into hiding because of political persecution." [26] The fact that he went to live in Saint-Marc to avoid political problems is not mentioned in either the original BOC Form or the amended BOC Form. [27] At the hearing, when asked about this time, he stated that it was the period when he left XXXX XXXX XXXX to live in Saint-Marc while still commuting to Port-au-Prince every day to attend university. He explained that he was forced to leave Saint-Marc to avoid problems following a political discussion. [28] Although the way he describes living in Saint-Marc, specifically not in hiding, does not match the more widely known definition of "dans le maquis" [to go underground], there is insufficient information in the extract of the minutes of the registry and from the hearing on the meaning of this expression for a negative conclusion to be drawn. [29] The RPD therefore committed an error in concluding that there was a contradiction between the testimony and the extract of the registry and by making a negative finding on the appellant's overall credibility. [30] When asked about the failure to mention in both his initial and amended BOC Forms that he had moved to Saint-Marc to avoid political problems, he replied that he thought he was required only to include the period when he lived in XXXX XXXX XXXX. Although, as noted by the RPD, this omission is surprising because he mentioned in his amended BOC Form that he had been assaulted in the street in 2004 after a political argument, the RAD acknowledges that these are old facts and that omitting them does not undermine the overall credibility of Mr. XXXX XXXX XXXX allegations. The RPD committed an error in concluding otherwise. On the conclusion regarding the date the second visa for Brazil was obtained [31] The RPD did not commit any errors in drawing a negative conclusion from the appellant's statements regarding the date the second visa was obtained. [32] Mr. XXXX XXXX XXXX obtained a tourist visa for Brazil on XXXX XXXX, 2012, and a second visa on XXXX XXXX, 2012. [33] At the hearing, he explained that he applied for the second visa, the first one being valid for XXXX months only, after the attack on XXXX XXXX, 2012, so that he could remain there permanently. [34] When confronted with the fact that the second visa was issued before the attack, he provided an unclear answer to the effect that this visa was his only way to leave the country and that is why he stated that he had applied for the visa after the attack. [35] In his memorandum, he states that he may have been mistaken given how old the facts are. [36] This explanation is unsatisfactory and undermines the credibility of the appellant's allegations. On the conclusion regarding the extract of the minutes of the registry [37] The RPD erred in giving little weight to Exhibit P-8 and no weight to Exhibit P-9. [38] While the logo on the extract of the minutes of the registry of the peace court in the commune of XXXX XXXX XXXX from XXXX XXXX XXXX 2014 (Exhibit P-9) looks slightly different than the one from the same court dated XXXX XXXX, 2012 (Exhibit P-8), this slight difference in the two documents that were issued two years apart is not significant. [39] Furthermore, the RAD notes that the RPD's conclusion that Exhibit P-8 contains numerous contradictions aside from the defect in the logo is not explicit with regard to said contradictions. [40] Lastly, the RAD does not share the RPD's opinion that the appellant's overall credibility issues and the variation in the logo justify giving little weight to Exhibit P-9. As mentioned above, the difference in the logos is not significant enough for such a conclusion to be drawn. [41] The justice of the peace states, in Exhibit P-8, which was written after the alleged attack on XXXX XXXX XXXX 2012, that the wall of the appellant's house shows signs of [translation] "impacts from hard objects and a bullet casing on the porch." [42] The justice of the peace notes, in Exhibit P-9, which was written after the alleged attack on XXXX XXXX, 2014, the presence of [translation] "impacts from hard objects on the wrought iron securing the complainant's house as well as on the walls along the porch above the roof of his house, where we noted several stones and three 9-mm bullet casings." [43] These observations, along with Mr. XXXX XXXX XXXX statements recorded by the justice of the peace, corroborate Mr. XXXX XXXX XXXX allegations regarding the two attacks against his house. Findings on the credibility of the allegations of threats and attacks on XXXX XXXX XXXX 2012 [44] There were two negative findings drawn concerning the credibility of Mr. XXXX XXXX XXXX allegations: one regarding the contradiction concerning the fact that he stated that he saw his attackers, and one regarding the attackers wearing masks. The RPD also drew an overall negative finding on Mr. XXXX XXXX XXXX credibility with regard to his statements about the visa application, as confirmed by the RAD. [45] However, these three findings are not sufficient to call into question, on a balance of probabilities, the existence of the threats and attacks on XXXX XXXX, 2012. Finding on the credibility of the allegations regarding the events of XXXX XXXX XXXX 2014 [46] The RPD did not draw any direct conclusions from these events, and the RAD is of the opinion that the RPD's findings on the appellant's overall credibility are erroneous (see above developments) aside from the finding relating to the visa application. This single finding does not allow for a conclusion that the facts are not established on a balance of probabilities. [47] The allegations concerning these two series of events are therefore credible and must be taken into consideration in the fear of persecution alleged by the appellant. On the situation of journalists in Haiti at the time of the events and now [48] The RPD correctly noted that according to the MINUSTAH report for July 1, 2015 to December 31, 2016, just as in the past, journalists have allegedly been victims of threats and intimidation directly related to their criticism of the government. [49] According to the National Documentation Package1 (NDP) from March 31, 2020, the situation for journalists in Haiti has deteriorated and complaints against the police for attacks on journalists have increased since 2018. Threats and attacks on members of the media, including by the police, have created a climate of fear for journalists who are critical of the government. [50] This information supports the fear of persecution expressed by the appellant, who stated at his hearing before the RPD that the PHTK party was still in power, and that if he were to return to Haiti, he would return to the XXXX and criticize that party once again. [51] Additionally, at the hearing, Mr. XXXX XXXX XXXX stated that individuals still went by his wife's home, were [translation] "saying things" and were seeking to harm him. [52] The appellant cannot be criticized for wanting to resume his work as a XXXX XXXX and freely expressing his political opinions if he returns to Haiti. [53] However, in so doing, he would face, in light of the previous developments, a serious possibility of persecution. [54] The RPD did not directly ask Mr. XXXX XXXX XXXX about the protection the Haitian state could provide him. He did, however, state that while the police had come to investigate, the country is corrupt and there is no justice. [55] The NDP (see above) shows that some journalists allege that they have been the victims of attacks in Haiti because of their anti-government opinions and that the police have occasionally been involved in attacks against journalists. [56] Mr. XXXX XXXX XXXX, who fears persecution because he voiced his political opinions and criticized the political party in power, could not benefit from adequate state protection, especially given that he states that he fears supporters of the ruling political party. [57] When asked by the RPD about the possibility of seeking refuge in Port-au-Prince, Mr. XXXX XXXX XXXX stated that this city is located in Haiti, and no matter where he goes in that country, if they wanted to find him, they would find him. [58] Given that country's geography and the fact that Mr. XXXX XXXX XXXX is a XXXX XXXX and therefore likely to be easily found if he hosts XXXX XXXX again, there is no internal flight alternative for him if he returns to Haiti. CONCLUSION [59] The appeal is allowed. I set aside the RPD's determination and substitute my own determination that the appellant is a Convention refugee. (Signed) Anne Revil Anne Revil June 23, 2020 Date IRB translation Original language: French 1 National Documentation Package, Haiti, March 31, 2020, Tab 2.1: Haiti. Country Reports on Human Rights Practices for 2019. United States. Department of State. March 11, 2020. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-19158 RAD.25.02 (January 2020) Disponible en français 10 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 (January 2020) Disponible en français