MB9-20997

RAD File No. / No de dossier de la SAR : MB9-20997 MB9-20998 / MB9-20999 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 XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 10, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal Me Dick Frank Rosales Ortiz Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the appeal filed by XXXX XXXX XXXX XXXX XXXX, citizen of Haiti, and her two children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, citizens of the United States, regarding a decision of the Refugee Protection Division (RPD) rendered on August 22, 2019, rejecting their claim for refugee protection. [2] The appellants submitted accounts, which include the following key points. In her first account, the female appellant noted that on XXXX XXXX, 2017, she was the victim of criminals who tried to break into her house, fired gunshots and screamed [translation] "We need to get rid of these bastards." She and her husband reported the incident to the peace court, and when they returned, they discovered that their house had been ransacked and that their car had been shot at. They left for another city, and she subsequently left with her children for the United States, and then for Canada shortly thereafter. She noted that they had previously received threats over the telephone and from bikers, and that stones had been thrown at their car. She explained that it was all likely related to the Facebook page her husband created in 2014, where he would take stands on current issues. [3] In her amended account, the female appellant states that she was active in the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX to improve women's living conditions and to collaborate with their union structure. After Jovenel Moise was elected in November 2016, she and her husband took a radical stance against party leadership which got them in political trouble. This was what drove her husband to use his Facebook page as of 2014 to share his political views. She notes that XXXX XXXX and a few party members wanted to get rid of them. [4] The RPD rejected their refugee protection claim on account of a credibility issue. The appellants are asking the Refugee Appeal Division (RAD) to set aide the RPD's determination and refer the matter to the RPD for re-determination. [5] The appellants are not asking to present new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and are not requesting that an oral hearing be held under subsection 110(6) of the IRPA. [6] The Minister's representative did not intervene in the appeal. Just as before the RPD, the RAD ruled that the principal appellant is the designated representative of her minor children. [7] On appeal, the appellants submitted the following arguments: 1. There was no failure to mention the death threats they received in the police report (P-3): she mentioned it in her first account. 2. The second account was completed without help from a legal adviser and she inadvertently failed to indicate that she had reported this fact to the police-this was a misunderstanding of the RPD. 3. The RPD relied on rather insignificant contradictions between the extract from the minutes of the registry (P-7) and her accounts, namely, failing to mention the bullet hole in the car; [translation] ". . . it could have been an omission by the justice of the peace." 4. According to the case law, failing to indicate her membership in the XXXX does not undermine [translation] "necessarily the presumption that the facts alleged by the refugee protection claimant are true"; all of the evidence must be taken into account. 5. The RPD did not consider the explanation for failing to claim asylum in the United States: she was scared [translation] "of how the United States treats immigrants" and of the widespread racism; and the case law states that not claiming refugee protection at the earliest opportunity does not waive that right. DETERMINATION [8] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination, namely, that XXXX XXXX XXXX XXXX XXXX and her two children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are neither "Convention refugees" nor "persons in need of protection" within the meaning of sections 96 and 97 of the IRPA. [9] The appeal is dismissed. SCOPE OF THE APPEAL [10] For questions of fact and law and questions of mixed fact and law, the RAD must apply the correctness standard in accordance with Huruglica.2 [11] After carefully listening to the hearing, I conducted an independent analysis of all the evidence on the record in order to form my own opinion about this refugee protection claim and decide whether the RPD's determination is correct. ANALYSIS [12] After examining the evidence on the record, both testimonial and documentary, the RAD arrives at the same conclusion as the RPD, according to which the appellants are not credible. [13] The appellants are of the opinion that the RPD failed to correctly assess their credibility, which impacted the determination that the appellants would not be subjected to persecution in their country. [14] The very essence of this case is based on the principal appellant's credibility. [15] The first two points raised in the memorandum pertain to Exhibit P-3, a police report. The appellants note that they reported the problems they experienced in the first account. At issue here is the failure to mention the complaint to the police authorities in the account. The RPD considered the female appellant's explanations on the matter to be unreasonable. What was the female appellant's testimony? When asked about the matter, she noted that she had gone to the office and was given the document. She added that this was her first complaint with the police and that she had forgotten to mention it in her account. She went on to mention that this was an error on her part. When asked about this significant omission from the account, the female appellant responded: [translation] "I do not know how I failed to mention that." [16] It must be noted that, at that time, a very experienced legal counsel assisted the female appellant in preparing her information form. On a few occasions, she charged that her legal counsel had told her that corrections would be made later. But that is not all. The female appellant represented herself before the RPD. The member made sure she understood the situation properly and inquired whether she wanted assistance from a legal counsel to represent her. She declined the offer. Similarly, the first-level member checked with the female appellant to make sure that the documents were in compliance and that her account was up to date and correct, and she confirmed that it was. It must be noted that the police report issued in XXXX 2017 is not mentioned in the two accounts she produced. To try to explain why it had not been mentioned, the female appellant stated that she did not have the document with her. It was only in September 2017 that she allegedly retrieved the relevant document. Again, she had the document in her possession when she wrote her account, yet she did not mention that fact, which she considers significant, to the Canadian authorities. [17] Question 2 and the sub-questions are clearly explained and are not confusing. Sub-question (a) asks whether the individual or their family have ever been harmed or mistreated. Sub-question (c) refers to whether the individual has asked the police authorities in their country to protect them. The female appellant checked the yes box. Then there are sub-questions regarding the resources, the steps taken, and so on. It is important to note that the principal appellant completed the Basis of Claim Form (BOC Form), that she understands French but that she did not properly answer question 2 and, in addition, made no mention of her efforts with the local police. [18] The RAD is of the opinion that this omission is significant and should have been included in the account, especially since she provided a second amended account and this document is still not specified. This significantly undermines her credibility. [19] As a result, the RAD is of the opinion that the RPD did not err. [20] The third point raised is that the RPD relied on rather insignificant contradictions between the extract from the minutes of the registry (P-7) and her accounts, namely, failing to mention the bullet hole in the car; [translation] " . . . it could have been an omission by the justice of the peace." The RPD opined that the female appellant failed to explain her failure to mention the gunshot that passed through the rear door of the vehicle body in document P-7, namely the written account provided by the justice of the peace. She added that she did not know. She testified that she did not notice this error in the document. [21] The document (P-7) recounts what the two officials noted following the female appellant's request to go visit the scene. Both individuals went to the female appellant's residence and assessed the scene and the damage. They address the vehicle but do not mention that a bullet had passed through this automobile. Then, they visited the rooms of the house to take note of the mess, the overturned furniture and the damage caused by criminals. The justice of the peace examined each room in the house. However, no statement was made about the motor vehicle. [22] The RAD would like to mention in passing that the questions pertain to her own documents, her evidence in fact. The female appellant testified that she had not noticed this oversight in the written account. The RAD cannot help but raise this serious issue in the record. Her evidence does not support the account submitted, and what undermines her credibility even more is that she was not even aware of it. [23] Accordingly, the RAD is of the opinion that the RPD did not err in its assessment of this part of the hearing. [24] The fourth point pertains to the failure to mention her membership in the OPL which, according to the case law, does not undermine [translation] "necessarily the presumption that the facts alleged by the refugee protection claimant are true"; all of the evidence must be taken into account. The RPD does not consider the female appellant's explanations to be reasonable since she testified that her legal counsel had told her to mention only the last event that drove her to leave her country. [25] The first account provided does not mention that the female appellant is a member of the OPL. In immigration form IMM 5669, she answered no to the question about whether the individual has ever been a member of an organization. It was only later that she corrected this response. When asked to explain this discrepancy, the female appellant stated that [translation] "There are many things that I did not mention . . . that is why I wanted to see my legal counsel to add missing details and correct them before the hearing." The RAD can only reject these convoluted explanations since any person should report past events and actions in the first draft of the forms that the Immigration and Refugee Board of Canada (IRB) asks them to complete. [26] This behaviour suggests that an individual can correct the incomplete information at an opportune time. It is important to remember that people come to our borders to claim Canada's protection. First, they must provide relevant information for their case to be examined. The contrary would suggest to us that all the statements are true. [27] The final point pertains to the fact that the initial hearing panel did not assess the explanations provided with regard to not seeking asylum in the United States. The RPD concluded that not seeking asylum with our neighbours to the south indicates negligible subjective fear. [28] It is worth noting that the female appellant had both of her children in the United States and that she has had visas from there since 2008. She did not claim protection in the United States because she mentioned that immigrants were mistreated. She consulted the Internet and preferred coming to Canada because of the welcome extended to newcomers. Contrary to the statement in the memorandum that the RPD did not take the female appellant's explanations into consideration, the RAD has an entirely different view. The reasons provided were that she preferred coming to Canada rather than making a claim in the United States. She stated that she had truly considered it, but she balked and chose to come to Canada. [29] The RAD agrees with the RPD on this matter. The female appellant knows the United States from having given birth there twice since both young appellants are American citizens. Listening to her statements, the RAD understands that she made a choice between two countries and that she set her sights on Canada since she alleges that our country is welcoming. The Federal Court has already ruled many times on country-shopping. It mentioned, and we are paraphrasing, that it is not a question of choosing the best country in which to claim international protection. Like the Federal Court, the RAD is of the opinion that a person who fears for their life should claim protection from the very moment they cross into a safe country. She had the opportunity to hold U.S. visas, she should have claimed protection from that first moment, which she did not do. This eliminates her subjective fear and outweighs her claim for refugee protection. [30] For the reasons expressed in this determination, the RAD believes the RPD made the correct, necessary decision. REMEDY [31] For these reasons, the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX, as well as XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. [32] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin January 10, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act (S.C. 2001, c. 27). 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (FCA, No. A-470-14, Gauthier, Webb and Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-20997 MB9-20998 / MB9-20999 RAD.25.02 (April 4, 2019) Disponible en français 8 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