MB8-13504

RAD File No. / No de dossier de la SAR : MB8-13504 MB8-13505 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 15, 2020 Date de la décision Panel Guerlain Guerrier Tribunal Counsel for the persons who are the subject of the appeal Me Kathleen Gaudreau Conseil des personnes 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 (female appellant) and XXXX XXXX (male appellant), citizens of Haiti and Venezuela, are appealing against a decision of the Refugee Protection Division (RPD) dated May 15, 2018, rejecting their claim for refugee protection. [2] Ms. XXXX XXXX XXXX XXXX claims that she was the target of insults, humiliation, theft and death threats by the Tupamaros in Venezuela and fears the Venezuelan government. She also submits that she cannot return to Haiti due to a land dispute with her uncle, who allegedly killed two of her family members. [3] Having found several elements of her testimony to be not credible, the RPD did not believe Ms. XXXX XXXX XXXX XXXX allegations regarding the land dispute with her uncle, XXXX XXXX XXXX. The RPD is of the opinion that there is no serious possibility of persecution and that the appellants would not be subjected to any of the risks set out in section 97 of the Immigration and Refugee Protection Act (IRPA) in Haiti. Therefore, it did not address the appellant's allegations regarding Venezuela. [4] The appellants contest the RPD's conclusions. In their opinion, their testimony should have been presumed true, as the RPD did not have any valid reasons to doubt it. The RPD erred in its credibility findings by assessing the evidence from a North American perspective that did not take into account the appellants' ages, culture and social background or the Haitian reality. [5] The determinative issue in this case is whether the RPD correctly assessed the appellants' credibility. Role of the Refugee Appeal Division [6] To address the issues, the RAD conducted its own independent analysis of all the evidence, including the audio recording of the hearing. In this case, the RAD applied the correctness standard of review, as it is of the opinion that the RPD did not enjoy a meaningful advantage in assessing the credibility of the oral testimony.1 DETERMINATION [7] The appeal is dismissed. ANALYSIS Haiti is a country of reference in this case [8] Since the appellants are Haitian citizens by birth and fear for their lives in that country, the RPD concluded that Haiti was a country of reference in this case. Therefore, it chose to first assess the appellants' fear with respect to Haiti. [9] The appellants allege that there is no guarantee that they could obtain Haitian identity documents, as evidenced in the National Documentation Package (NDP) on Haiti. [10] In their memorandum, the appellants do not contest the RPD's conclusion that they are Haitian citizens and are claiming Canada's protection from that country. The appellants' also state in their Basis of Claim Forms (BOC Forms) that they are Haitian citizens by birth and fear serious harm in Haiti. [11] In the RAD's opinion, the RPD's decision concerning the country of reference is correct. It is neither relevant nor necessary in this case to assess how easy it is to obtain identity documents from the Haitian government. One need only correctly identify the countries of reference and assess the allegations related to each of them. In this case, there are two countries of reference. The appellants have the burden of establishing that there is a serious possibility of persecution or that they would be subjected to one of the risks set out in section 97 of the IRPA for each country of reference. The appellants' credibility is undermined by a significant omission in the BOC Form and a contradiction [12] The RPD noted that the name of the agent of persecution, XXXX XXXX XXXX, was not in the appellants' BOC Form. It is of the opinion that this is a significant omission which undermines the appellants' credibility, as they claim to be subjected to a risk of serious harm in Haiti. The RPD is of the opinion that the agent of persecution's name should at the very least be included in the BOC Form. [13] In the appellants' view, the RPD's conclusion is unreasonable. The RPD erred in concluding that the appellants were not credible based on a single omission. The appellants explain that they focused on the account of the persecution suffered in Venezuela (one paragraph dealing with the fear in Haiti versus 17 paragraphs for Venezuela) because they believed that it was impossible to obtain proof of Haitian citizenship and did not believe that the RPD would assess the possibility of a return to Haiti. However, Ms. XXXX XXXX XXXX XXXX testimony was detailed and free of contradictions and inconsistencies. [14] The RAD is of the opinion that this is a significant omission for the following reasons. The BOC Form states that the appellants must include everything that is important for their refugee protection claims and include dates, names and places wherever possible. In addition, the appellants confirmed at the beginning of the hearing that the information contained in the BOC Form was complete. Yet the information related to Haiti in the BOC Form is clearly introductory and insufficient. The identity of the agent of persecution and the chronology of events are basic elements of a refugee protection claim. By omitting the name of the agent of persecution and their family relationship, information that they had, the appellants were deliberately vague and showed a reluctance that the RAD has difficulty understanding, especially since they benefitted from the assistance of counsel to present their case before the RPD. [15] The RAD also notes another contradiction between Ms. XXXX XXXX XXXX XXXX testimony and the content of her forms. Schedule A states that Ms. XXXX XXXX XXXX XXXX father died in 1993. Yet she testified that her father informed her, during a telephone conversation in 2007, that he was leaving her the land under dispute with her uncle. Since credibility is at issue in this appeal and the appellants provided the information contained in their forms, the RAD is of the opinion that conducting its own independent analysis of the documentary evidence is legitimate.2 [16] The RAD finds that the appellants' credibility is undermined by the omission in the BOC Form and the contradiction between the forms and Ms. XXXX XXXX XXXX XXXX testimony. There is no documentary evidence that the appellants possess disputed land in Haiti [17] The RPD noted that Ms. XXXX XXXX XXXX XXXX did not submit any relevant documentation of the land and her title to it. Ms. XXXX XXXX XXXX XXXX acknowledges that she was in regular contact with her family, but she did not make any efforts to obtain the documentary evidence to corroborate her written account. The RPD found that failing to submit documentary evidence undermined Ms. XXXX XXXX XXXX XXXX credibility. [18] In her memorandum, Ms. XXXX XXXX XXXX XXXX submits that it is unreasonable to find that she is not credible based on the lack of corroborating evidence. Her oral testimony should suffice (Maldonado). [19] In our view, it would be an error to require documentary evidence that corroborates the appellants' allegations without valid reasons. Yet given the significant omission identified between the BOC Form and Ms. XXXX XXXX XXXX XXXX testimony, there was a valid reason to doubt the appellants' credibility. Thus, they had the burden of establishing, on a balance of probabilities, their allegation regarding the land dispute. They did not do this. [20] Ms. XXXX XXXX XXXX XXXX is partially right to the extent that the RPD did not explain in detail all the steps of its reasoning and seems to have interrupted its analysis. The RPD should have insisted on the fact that it was because the appellants' credibility had previously been undermined that the submission of documentary evidence was required in this case. [21] The RAD concludes that the appellants did not establish, on a balance of probabilities, the existence of the land that Ms. XXXX XXXX XXXX XXXX allegedly owns. They further did not establish that they are involved in a land dispute with Ms. XXXX XXXX XXXX XXXX uncle. The RAD does not believe that Ms. XXXX XXXX XXXX XXXX uncle assassinated her brother and second cousin [22] Ms. XXXX XXXX XXXX XXXX family allegedly did not file a complaint with the police following the alleged assassinations of her brother and second cousin. The RPD asked the female appellant to explain the lack of complaints by her family to the Haitian authorities. The RPD did not accept the explanations provided. The RPD concluded that the appellants had not established the allegation that there was a serious possibility of persecution or prospective risk of a risk to their lives or a risk of cruel and unusual treatment or punishment at the hands of Ms. XXXX XXXX XXXX XXXX uncle. [23] In her memorandum, Ms. XXXX XXXX XXXX XXXX argues that the RPD erred by rejecting her explanations, as it did not consider the cultural differences between Haiti and Canada. Ms. XXXX XXXX XXXX XXXX states that the Haitian population generally does not trust the authorities. [24] With respect, the RAD is of the opinion that the RPD made another error in conducting its analysis. The RPD should not draw a negative inference regarding the appellants' credibility based on the behaviour of third parties. However, the RPD's conclusion that the assassinations and the uncle's responsibility were not established on a balance of probabilities is correct. [25] The RPD erred by challenging the appellants with the behaviour of a third party, in this case their family members in Haiti. This was not about the refugee protection claim of Ms. XXXX XXXX XXXX XXXX parents. The explanations that Ms. XXXX XXXX XXXX XXXX provided for the absence of complaints are not relevant in this case. [26] It would have been more appropriate if the RPD had addressed the appellants' reaction to the double murder by deciding whether the fact that they themselves did not complain to the authorities is a behaviour that corresponds to the alleged fear. [27] That said, the RAD does not find that the appellants' credibility is undermined by the fact that they did not file a complaint with the Haitian authorities when they were living in Venezuela, if such a complaint had been possible at all. [28] The fact remains that, as with the land dispute, the appellants, whose credibility was undermined, did not establish that Ms. XXXX XXXX XXXX XXXX brother and second cousin were assassinated by her uncle. [29] Furthermore, the RAD notes that the memorandum contains no references or updates regarding the death certificate of Ms. XXXX XXXX XXXX XXXX second cousin that she allegedly tried to obtain one week before the hearing of May 2, 2018, before the RPD. [30] The RAD concludes that the alleged double murder did not occur. CONCLUSION [31] The appellants submitted a BOC Form containing a significant omission regarding the identity of the agent of persecution and their family relationship to him. In addition, Ms. XXXX XXXX XXXX XXXX contradicted herself on the date of her father's death. This undermines their credibility. The appellants also failed to submit documentary evidence in support of their allegations. The RAD does not believe in the land dispute between Ms. XXXX XXXX XXXX XXXX and her uncle or that the uncle assassinated her brother and second cousin. Therefore, the RAD concludes that the appellants did not establish that there is a serious possibility of persecution or that they would face any of the risks set out in section 97 de la IRPA. [32] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the determination of the RPD that the appellants are neither Convention refugee nor persons in need of protection. Guerlain Guerrier Guerlain Guerrier January 15, 2020 Date IRB translation Original language: French 1 Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Yimer v. Canada (Citizenship and Immigration), 2019 FC 1335, paras. 17-18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-13504 MB8-13505 RAD.25.02 (April 4, 2019) Disponible en français 7 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