MB9-06764

RAD File No. / No de dossier de la SAR : MB9-06764 MB9-06765 / MB9-06766 / MB9-06767 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, Ontario Appel instruit / entendu à Date of decision November 27, 2019 Date de la décision Panel Nicole Ladouceur Tribunal Counsel for the persons who are the subject of the appeal Jihane Chikhi Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX and her minor children XXXX XXXX, XXXX XXXX and XXXX XXXX, all citizens of Haiti, are appealing against the decision of the Refugee Protection Division (RPD). [2] The appellant XXXX XXXX XXXX XXXX XXXX XXXX XXXX was appointed as the designated representative of her minor children for the purposes of this appeal. The children's refugee protection claims are based on their mother's allegations. [3] The appellant alleges that the RPD erred in its assessment of her credibility. She is asking the Refugee Appeal Division (RAD) to set aside the RPD's determination, allow her claim for refugee protection or refer the matter to the RPD for re-determination by a new member and render any other order deemed necessary. [4] The appellant presented new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA). [5] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the RPD's determination. [6] The appeals are dismissed. BACKGROUND [7] The appellant is a member of XXXX XXXX, a sociocultural, educational, political and economic association linked to the Assembly of Progressive National Democrats (RDNP) party. She alleges that after she participated in a radio program on XXXX XXXX, 2012, during which she stated that the current government administration should be held responsible for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX on XXXX XXXX XXXX 2012, she received death threats. [8] She alleges that on XXXX XXXX XXXX her cousin, who also participated in the radio program, was beaten by members of the Tèt Kale (PHTK) party. [9] Following the incident, the appellant left Haiti and went to the United States. She returned to Haiti on XXXX XXXX, 2013. Upon her return, armed men allegedly shot at the car she and her XXXX XXXX husband were in. She filed a complaint at the police station on XXXX XXXX, 2013. [10] On XXXX XXXX, 2013, the appellant allegedly found out that two individuals had gone to her work and asked to see her. They reportedly threatened to kidnap, rape and kill her if she continued to [translation] "stick her nose into things that did not concern her." [11] On XXXX XXXX XXXX 2013, the appellant left Haiti for the United States. On August 9, 2017, the appellants arrived in Canada and claimed refugee protection. [12] The appellant fears that supporters of the PHTK party would attack her and her family if she were to return to Haiti. [13] The RPD rejected the claim for refugee protection after noting contradictions and omissions in the appellant's story that undermined her credibility. The panel determined that the appellants were neither Convention refugees under section 96 nor persons in need of protection within the meaning of subsection 97(1) of the IRPA. ADMISSIBILITY OF NEW EVIDENCE [14] In a written statement, the appellant asks that the RAD allow two new pieces of evidence. The first is an affidavit from her husband regarding the transmission of a membership card and letter of membership in the RDNP party (Exhibit A-1) in XXXX 2015. The second is an attestation letter from an RDNP department head (Exhibit A-2) indicating the date on which she joined the RDNP party. This statement is not accompanied by an affidavit from the appellant, contrary to the requirements of rule 37(4) of the Refugee Appeal Division Rules. [15] To support her claim, the appellant submits that these new pieces of evidence became necessary following the RPD's questions and findings and that it was therefore unreasonable to expect them to have been produced. She adds that they are relevant and that their absence partially influenced the RPD's decision, without providing further details.1 [16] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [17] In Singh, the Federal Court of Appeal ruled that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, have to be met and leave no room for discretion on the part of the RAD. It also ruled that the criteria set out in case law regarding credibility and relevance of the evidence arise implicitly from the wording of the subsection in question. In short, Parliament expressed clear intent to authorize the introduction of new evidence in an appeal before the RAD only under specific and carefully defined circumstances. Its role is not to provide the opportunity to complete a deficient record, but to allow for errors that could have been made by the RPD to be corrected.2 [18] It has been clearly established that the onus is on the appellant to demonstrate how the new evidence meets all the relevant criteria.3 In my opinion, the two pieces of evidence presented in the appellant's record do not meet the criteria under subsection 110(4) of the IRPA. My reasons are as follows. The spouse's statement [19] The document, signed before a notary on April 5, 2019, refers to the spouse sending, on September 25, 2015, the appellant's membership card and letter of membership in the RDNP. Since the facts presented in this evidence occurred before the RPD's decision, this document does not meet the first criterion of subsection 110(4) of the IRPA.4 In her statement, the appellant failed to establish that it was not possible to obtain this evidence before the RPD rendered its decision, or why she could not reasonably have been expected to present the evidence to the RPD. As a result, this evidence does not satisfy any of the three criteria under subsection 110(4) and is therefore inadmissible as evidence before the RPD. Attestation from the head of the RDNP [20] The second document is an attestation letter issued by the head of the RDNP referring to events that occurred before the RPD rejected the refugee protection claim. The appellant failed to establish that it was impossible to make these verifications before the RPD rendered its decision, or why she could not reasonably have been expected to present the information to the RPD. As a result, this evidence does not satisfy any of the criteria under subsection 110(4) of the IRPA and is inadmissible as evidence before the RPD. In my opinion, the purpose of this attestation is to essentially supplement a lack of evidence. As indicated by the Federal Court, an appellant cannot offer new evidence every time he or she is surprised by the RPD's decision.5 ROLE OF THE REFUGEE APPEAL DIVISION [21] According to the case law, the RAD reviews decisions of the RPD by applying the correctness standard of review after carrying out its own analysis of the record. The exception to this rule is when the RPD has a particular advantage in the assessment of the credibility or weight to be given to the oral evidence it hears, in which case the RAD may give deference to the RPD's findings.6 If I conclude that I must give deference, I would explain why the RPD had a real advantage in drawing the conclusion in question. ANALYSIS [22] The aim is to determine whether the RPD erred in assessing the appellant's credibility. [23] After conducting my own analysis of the evidence on the record, including listening to the recording of the hearing before the RPD and considering the appellant's memorandum, I am going to confirm the RPD's determination that the appellant has failed to demonstrate that the problems she experienced in Haiti have a nexus with the Convention or that she risks being personally subjected to mistreatment within the meaning of subsection 97(1) of the IRPA. [24] The RPD found that there were a number of credibility issues with the appellant's story, and that those issues were not satisfactorily explained. It also indicated that there were significant omissions and that the appellant's testimony lacked spontaneity around important and essential elements of her refugee protection claim. The main omissions are as follows. Failure to declare her affiliation with the RDNP party [25] The appellant alleges that her fear is based on problems she experienced because of her involvement with the RDNP. However, in question 9 of Schedule A, there is no mention of her membership. When asked about this, the appellant stated that when she arrived at the Canadian border there were many people, that it was difficult for her to hear, that her blood sugar level was high and that the question had not caught her attention.7 She added that there were many flaws in her document, that she did not know exactly where, but that there were others.8 [26] The RPD asked her why, if question 9 had not caught her attention, she had indicated her membership in XXXX XXXX, a XXXX association. The appellant reiterated that there were many flaws in her document. [27] In her memorandum, the appellant submits that the RPD erred in drawing an adverse inference from the fact that she failed to mention her affiliation to the RDNP in Schedule A. The appellant submits that statements made at the border should not be relied upon, citing the relevant case law.9 [28] However, Schedule A clearly shows that the appellant provided detailed answers to questions 7, 8, 9 and 12 of Schedule A. The testimony of the appellant, who completed four years at university, including two in law, contradicts the content of her own document. [29] The appellant's membership in the RDNP, her role as assistant coordinator and the ensuing problems are key elements behind her decision to leave Haiti. These are very important facts, and it was reasonable to expect that this information would appear in her account. [30] It is true that case law invites decision-makers to be cautious when assessing statements made at the border. However, the same case law indicates that consideration must be given to the circumstances in which the information was requested and provided. In this case, the appellant submits that she did not pay attention to question 9 with respect to her membership in the RDNP, while the evidence shows that she mentioned her membership in XXXX XXXX. She also gave detailed answers to other questions on the form. Concluding that her response regarding her failure to mention the RDNP in question 9 of Schedule A was unreasonable, the RPD found that this omission undermined her credibility. This finding is correct and I do not need to intervene. Inconsistency between the Basis of Claim Form and document regarding membership in the RDNP [31] The RPD noted an inconsistency in the appellant's account when it asked her why her document regarding her membership in the RDNP, dated XXXX XXXX, 2010, indicated that she had three children, yet her third child was born in 2012. I listened carefully to the appellant's testimony at the hearing. On several occasions, she hesitated for a long time and did not respond until the RPD asked her the question a second time. She sometimes contradicted herself or stated that she had made a mistake. Regarding the membership document, after a long pause, she stated that she had not paid attention to the document. [32] In her memorandum, the appellant asserts that although it was dated XXXX XXXX, 2010, the membership document was produced in 2015. However, in her testimony at the hearing, the appellant stated that she had ceased to be a member of the RDNP in 2013, when she left Haiti for the United States.10 In light of her testimony and the fact that she no longer lived in her country as of 2013, it is implausible that the document was produced in 2015. [33] The RPD's finding that the appellant's testimony regarding the membership document is not credible is correct, and I do not need to intervene. Omission regarding current threats [34] The RPD asked the appellant if she still received threats after her departure in 2013, and the appellant responded yes. However, nothing on this matter appears in her Basis of Claim Form (BOC Form). When asked about this, the appellant hesitated for a long time and replied that she only answered the questions that she was asked. The RPD then asked her why she had not mentioned this in her two-page account. The appellant replied that the criminals were still looking for her. The RPD's finding that the lack of a clear answer undermined her credibility is correct. I do not need to intervene. [35] When the witness has difficulty giving adequate and direct answers, the panel may make an adverse credibility finding. A lack of spontaneity and inability to provide details may therefore have an impact on the witness's credibility.11 In such circumstances, the Board may draw negative inferences from contradictions between a claimant's BOC Form and testimony for which he or she did not provide a satisfactory explanation.12 Probative value of the police complaint and extract from the minutes of the registry [36] In her memorandum, the appellant asserts that the RPD erred when it excluded the police certificate (Exhibit C-4) and the extract from the minutes of the registry (Exhibit C-3) from the evidence on the basis that the appellant was not credible. According to her, the documents are genuine and were drawn up by officers of the court. [37] Based on my own analysis of the record, the RPD did not disregard this evidence. After finding that these letters repeated facts it had deemed not to be credible, the RPD did not give them any probative value. [38] Probative value has to do with the capacity of the evidence to establish the fact of which it is offered in proof.13 It is open to the RPD not to give evidentiary weight or probative value to documents based on underlying evidence found not to be credible.14 Where the claimant's personal testimony is not credible, it is reasonable for the RPD to have credibility concerns with the supporting documentary evidence, and the RPD may grant it minimal weight.15 [39] According to my analysis of the record, the RPD considered all the evidence and made the effort to explain why it did not give probative value to exhibits C-3 and C-4. Based on my analysis of the record, it could not give them any probative value; therefore, I am of the opinion that it did not err. Fear based on the particular social group of women [40] In her memorandum, the appellant asserts that the RPD erred in applying Chairperson's Guideline 416 when it concluded that the risk of being a victim of violence by reason of her gender was reduced because she had relatives in Haiti and a police officer husband. [41] After conducting my own analysis of the record, I am of the opinion that the RPD carried out a specific and personalized analysis of the appellant's fear of persecution as a member of the particular social group consisting of Haitian women. Therefore, contrary to the appellant's arguments, the RPD did not limit itself to the presence of her relatives and her husband's occupation. Indeed, it considered all of the Guideline's elements, such as education, her job and her travels abroad, and concluded, while acknowledging that violence against women is endemic in Haiti, that all these elements taken together reduce her risk of being targeted on the basis of her gender. I consider that its decision is correct and I do not need to intervene. [42] The onus is on the refugee protection claimant to establish, on a balance of probabilities, the facts on which her claim is based.17 The RPD and RAD can make findings based on implausibilities, inconsistencies or omissions. Moreover, an accumulation of contradictions and omissions can be fatal to a refugee protection claimant's credibility.18 [43] In this case, after reading the RPD decision, listening to the recording of the hearing before the RPD and considering the arguments presented on appeal, I am of the opinion that the correct decision was to reject the claim for refugee protection, as the omissions and contradictions were fatal to her credibility. DETERMINATION [44] For all of these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX, XXXX XXXX and XXXX XXXX are neither Convention refugees under section 96 nor persons in need of protection within the meaning of section 97 of the IRPA. [45] The appeals are dismissed. (signed) "Nicole Ladouceur" Nicole Ladouceur November 27, 2019 Date IRB Translation Original language: French 1 P-2, written statement, appellant's record, p. 15. 2 Canada (M.C.I.) v. Singh, 2016 FCA 96. 3 Galamb v. Canada (M.C.I.), 2016 FC 1230. 4 Andrade v. Canada (M.C.I.), 2018 FC 505, para.14. 5 Ilias v. Canada (M.C.I.), 2018 FC 661, paras. 34 and 35. 6 Canada (M.C.I.) v. Huruglica, 2016 FCA 93, para. 78. 7 Recording of hearing on February 19, 2019, 00:40:44. 8 Recording of hearing on February 19, 2019, 00:46:26. 9 Wu v. Canada (M.C.I.), 2010 FC 1102. 10 Recording of hearing on February 19, 2019, 00:40:14. 11 Josephine Ngoma Khuabi v. Canada, 2012 FC 141. 12 Grinevich et al v. Canada (M.C.I.), No. IMM-1773-96. 13 Magonza v. Canada (M.C.I.), 2019 FC 14, para. 21. 14 Lawani v. Canada (M.C.I.), 2018 FC 924, para.24. 15 Ogaulu v. Canada, 2019 FC 547, para. 26. 16 Chairperson's Guideline 4 on Women Claiming Refugee Status for Gender-Related Reasons. Effective date: November 13, 1996. Available on the IRB website. 17 Arreaga v. Canada (M.C.I.), 2013 FC 977, para. 45. 18 Aguilar v. Canada (M.C.I.), 2012 FC 150. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-06764 MB9-06765 / MB9-06766 / MB9-06767 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français