MB7-23393

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 File No. / No de dossier de la SAR : MB7-23393; MB7-23394 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision July 5, 2018 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Walid Ayadi Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, the principal appellant, and XXXX XXXX XXXX XXXX XXXX, his spouse, both Haitian citizens, are appealing against the decision of the Refugee Protection Division (RPD). They are not presenting any evidence or requesting that a hearing be held. They are submitting that the RPD erred in its assessment of the principal appellant's credibility and the merit of his allegations. They are also submitting that the RPD erred in its assessment of their oral and documentary evidence. [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination. I. BACKGROUND A. Alleged facts [3] In his Basis of Claim Form (BOC Form), the principal appellant states that he was threatened following the publication of a text on the shooting death of a young man on March 9, 2017, relating to a land conflict. The main perpetrator behind that killing was XXXX XXXX, an agent at the office of the secretary of state for public security. He also states that after receiving the threats, on March 11, 2017, he filed a complaint with the police, on March 13, 2017, another complaint with the public prosecutor at the Cap-Haïtien civil court of first instance and, on April 20, 2017, another complaint with the ministry of justice and that, while leaving the ministry's premises, he crossed paths with XXXX XXXX. He finally states that the police were unable to do anything to stop XXXX XXXX and his criminals, who remain free. [4] On XXXX XXXX XXXX XXXX, the principal appellant left his country for the United States where his spouse joined him in July of that same year. They arrived in Canada that same month and made their refugee protection claims.1 [5] Besides their BOC forms, the appellants, then referred to as the claimants, submitted into evidence a number of documents before the RPD.2 B. RPD decision [6] The hearing before the RPD was held on September 28 and October 10, 2017, and the decision to reject the refugee protection claims was rendered on October 25, 2017. [7] The RPD found that the claimants gave testimony that was not credible on determinative aspects of their refugee protection claims, notably based on contradictions, omissions and inconsistencies that, in its opinion, were not reasonably explained and that consequently undermined their credibility. In short, the RPD considered that the principal claimant's failure to mention the name of the person who was threatening him, that is, XXXX XXXX, in the article that he published on his Facebook page and then in the various complaints reporting those threats, undermines his credibility, while the explanations provided on that matter were not reasonable.3 II. GROUNDS OF APPEAL AND DECISION SOUGHT [8] In their memorandum, the appellants submit that the RPD erred in assessing the credibility of the principal appellant and the merit of his allegations. They also submit that the RPD erred in assessing their oral and documentary evidence.4 The appellants' arguments are set out below in greater detail. [9] First, with regard to the identity of the agent of persecution in the complaints filed, the appellants submit that, throughout the hearing, the principal appellant gave consistent testimony regarding his agent of persecution, XXXX XXXX, corroborating what is stated in his BOC Form. They also submit that the principal appellant explained to the RPD that the police erred in the complaint that he filed with them and that he did indeed identify his agent of persecution, notably by giving the police his telephone number so that they could apprehend him. In their opinion, there is no inconsistency or contradiction in the principal appellant's testimony before the RPD and it erred by speculating on the latter's skills as an experienced journalist and by failing to consider and assess all the evidence as a whole.5 [10] Second, with regard to the inference of a contradiction in the article published by the principal appellant, the appellants submit that the RPD erred by not taking into account the principal appellant's job as an investigative journalist who sought to make links to denounce the people involved in the murder, and who published his article on March 10, 2017, based on information obtained from witnesses who were present at the scene of the murder. They submit that it was as of that moment that he began receiving threats from XXXX XXXX, whom the principal appellant confirmed as the person who was actually the mastermind behind the crime.6 [11] Third, with regard to the description of the agent of persecution in the complaint, the appellants refer to the documentary evidence regarding the certificates of complaint or report filed in Haiti, and submit that the letter prepared by the principal appellant was incorporated into the report. They also submit that the RPD seemed to have wanted to reject the principal appellant's refugee protection claim without adequately analyzing it or considering the documentary evidence on his country.7 [12] Fourth, with regard to the rejection of the corroborating evidence, the appellants submit that the RPD erred by finding that the principal appellant lacked credibility in general and then using that to impact the weight to be given to the documentary evidence they submitted. They also submit that the RPD should have assessed and reviewed their documentary evidence.8 [13] Fifth, as a general credibility finding, the appellants submit that the RPD tried to characterize certain facts as contradictory and inconsistent in order to reject their claims and that that approach is erroneous and contradicts the information in the Assessment of Credibility in Claims for Refugee Protection guide. Referring to that document, the appellants submit that the discrepancies identified when reviewing refugee protection claims must be sufficiently serious and must concern matters that are relevant enough to warrant the adverse finding. They also submit that the RPD did not take into account the presumption of truthfulness, which is well-established in law, and instead conducted a selective and erroneous review of the evidence, substituted its personalized knowledge in an abusive manner to justify its reasoning and drew categorical conclusions that were not based on the evidence.9 [14] In short, the appellants are requesting that the RPD's determination be set aside and that they be recognized as refugees and people in need of protection or, if applicable, that their matter be referred to the RPD for a hearing de novo before a differently constituted panel.10 III. APPLICABLE STANDARD OF REVIEW [15] In their memorandum, the appellants submit that the RAD is an appeal tribunal with jurisdiction to hear appeals de novo, and that it must analyze the evidence before it and draw its own conclusions, not owing any particular deference to the RPD.11 [16] According to the case law, the RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to that rule involves cases where the RPD enjoys a meaningful advantage in assessing the credibility or weight to be given to oral evidence it hears, the RAD must apply the reasonableness standard modified to its particular context.12 That said, the RAD's role is not to carry out a de novo consideration of the refugee protection claim, but rather, to determine whether, as the appellants submit, the RPD erred.13 [17] In the decision rendered by a three-member RAD panel on May 17, 2017, examples were provided of situations in which the RPD could have a meaningful advantage. First, a good part of what occurred at the hearing before the RPD is not as clear for the RAD as it was for the RPD.14 Then, where the RPD questions a claimant about inconsistencies or contradictions relating to a document and hears the explanation provided by the latter.15 I am of the opinion that that is indeed the situation in this case. Consequently, there is reason for me to show deference to the RPD's findings of fact that are supported by the oral testimony given before it by the principal claimant regarding contradictions or inconsistencies relating to a number of documents. Consequently, I must show deference to the RPD's findings, but I must also conduct an independent analysis of the record and determine whether the RPD erred and what the correct decision in the case is.16 IV. ANALYSIS OF THE APPEAL [18] After conducting my own analysis of the record, notably by listening to the recording of the hearing,17 I am of the opinion that the RPD was justified in finding that the claimants gave testimony that was not credible on determinative aspects of their refugee protection claims, that it did not err and that the correct decision was to reject the refugee protection claims. Here is why. A. Assessment of the credibility [19] It is up to the person who is claiming refugee protection to establish, on a balance of probabilities, the facts on which they are basing their claim.18 The RPD and the RAD may draw conclusions based on implausibilities, inconsistencies and omissions. It is the entirety of the evidence that must be assessed, the RPD or RAD members applying common sense and human experience.19 Furthermore, an accumulation of contradictions and omissions can be fatal to the credibility of a refugee protection claimant.20 [20] At the outset, I would like to point out that the RPD took the time to patiently ask useful and necessary questions to clearly understand the allegations made before it. Its findings are not inferences stemming from a microscopic analysis of the evidence or from a desire to reject the refugee protection claims-which, on the contrary, it analyzed carefully. [21] At the hearing, the RPD pointed out that, in the article that he published on his Facebook page,21 the principal appellant does not mention the name of the person who was threatening him, that is, XXXX XXXX. It asked him to explain. I listened carefully to the entire recording of the hearing and specifically this part of the principal appellant's testimony. In my opinion, his explanations on this matter are not reasonable. He first explained that, when he instead mentioned the name of the lawyer XXXX XXXX XXXX, it was because he had been on the scene, that he is the lawyer of XXXX XXXX the person who murdered the young man, XXXX XXXX, and also the lawyer of XXXX. When asked again to explain why he did not mention XXXX XXXX in the article, the principal appellant then responded, [translation] "Well, I just mentioned that. It's not... there is really no special reason for that." He then added that he had mentioned the name of XXXX XXXX XXXX because [translation] "it's as the lawyer... of... because, normally, I would ensure that the ties that exist in all of this, that is... after I had info indicating that XXXX was hiding somewhere, after the article was published." The RPD then asked: [translation] "When you wrote the article, did you know that XXXX was involved?" He then responded that he knew that the men worked for XXXX and that he mentioned the lawyer's name because he is XXXX's lawyer and the henchmen worked for both men, XXXX and XXXX, because his article was not detailed, it was just a short article.22 In short, when listening attentively to that portion of the principal appellant's testimony, I am of the opinion that the explanation provided-that there was not really a reason why the principal appellant did not mention the name of XXXX XXXX in his article-is not reasonable because his testimony as a whole indicates, rather, that he was well aware that those people worked for him. Consequently, after conducting my own analysis, I am of the opinion that the RPD was justified in finding as it did on that specific point.23 [22] At the hearing, the RPD also pointed out that, in the various complaints filed into evidence, the name of the person allegedly threatening him, that is, XXXX XXXX, is not mentioned. Not to mention that, in his complaint dated March 11, 2017, namely, the one that was made after he received a call in which, according to his BOC Form and his testimony, XXXX XXXX threatened him,24 the person who is actually named in the complaint as being the person who made the threats is XXXX and not XXXX XXXX.25 When confronted with that contradiction, the principal appellant explained to the RPD that, if there was a problem, it was at the police level and that he had stated that he had received a threat from a number that he gave to the police, leaving it up to them to determine who it was. When asked to explain whether he had tried to communicate with the police to correct that error, his response was that he had not paid attention to that, that he believed that everything was okay and that he had not really read the complaint in detail.26 I am of the opinion that that explanation is not reasonable. Consequently, after conducting my own analysis, I am of the opinion that the RPD was justified in finding as it did on that specific point.27 [23] I also consider that the explanation that, in the other complaints, the telephone number that was provided was that of XXXX XXXX and that he left it up to the authorities to conduct their investigation28 is not reasonable either, given that, in the first complaint, the number is identified as that of XXXX and not that of XXXX XXXX.29 Consequently, after conducting my own analysis, I am of the opinion that the RPD was justified to conclude as it did on that particular issue.30 [24] With regard to the argument that the RPD was obligated to review and assess all the documentary evidence submitted before it by the appellants, I am of the opinion that it must be rejected. The RPD actually took those documents into account but it found that they provided information about facts that it did not find credible.31 The case law is very clear on that issue. As Justice de Montigny, a member of the Federal Court at the time, writes: Despite the RPD's duty to consider all of the evidence, the finding that a claimant has no credibility may extend to all of the evidence he or she submits.... In dismissing evidence that merely repeated a version of the facts considered to be not very credible and improbable, the RPD did not err or breach the general rule that all evidence must be considered before ruling on the credibility of an applicant's account.32 [25] After conducting my own review of the matter, I am of the opinion that the appellants' arguments have no merit. On the contrary, given the series of contradictions and omissions that it clearly identified and the unreasonable explanations provided, the RPD was justified in finding that their testimony was not credible and that it did not believe their allegations of threats, persecution and risks to their lives.33 B. Consideration of the documentary evidence [26] In his submissions before the RPD, the appellants' lawyer refers to the documentary evidence regarding Haitian journalists and Haitian women who may be targeted as members of the same family, as someone whom the criminals want to target, and the fact that Haiti is a small country where a culture of vengeance is rampant.34 In their memorandum, the appellants submit that the RPD did not consider the documentary evidence relating to their country of origin.35 On that issue, it should be pointed out that, when concerns about the credibility or trustworthiness of the claimant's evidence cause doubt in terms of the very essence of the claim, it is not necessary to consider the general country condition evidence to determine whether the claim is well-founded.36 I am of the opinion that that is exactly what happened in this case. CONCLUSION [27] For these reasons, I confirm the RPD's determination that XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX are not Convention refugees under section 96 or people in need of protection under section 97 of the IRPA. [28] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette July 5, 2018 Date IRB translation Original language: French 1 The principal appellant's Basis of Claim Form (BOC Form) is reproduced at pages 11 to 21 of the RPD record. That of his spouse is reproduced at pages 22 to 32 of the RPD record. 2 Those documents entered as C-1 and C-26 are reproduced at pages 116 to 234 of the RPD record. 3 RPD's reasons and decision, October 25, 2017, pages 3 to 10 of the RPD record. 4 Appellants' memorandum, December 19, 2017, Title V, page 19 of the appeal record. 5 Ibid., paragraphs 37 to 49, pages 23, 24 and 25 of the appeal record. 6 Ibid., paragraphs 50 to 54, pages 25 and 26 of the appeal record. 7 Ibid., paragraphs 55 to 64, pages 26 to 29 of the appeal record. 8 Ibid., paragraphs 65 to 70, pages 29 and 30 of the appeal record. 9 Ibid., paragraphs 71 to 84, pages 30 to 35 of the appeal record. 10 Ibid., paragraph 85, pages 35 and 36 of the appeal record. 11 Ibid., paragraphs 20 to 34, pages 19 to 22 of the appeal record. 12 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. X (Re), 2017 CanLII 33034 (CA IRB). 13 Canada (Minister of Citizenship and Immigration) v. Gebrewold, No. IMM-4058-17, LeBlanc, April 6, 2018; 2018 FC 374, paragraph 25. Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. 14 X (Re), paragraphs 44, 45 and 46. Read also Paye v. Canada (Minister of Citizenship and Immigration), No. IMM-92-17, Martineau, July 14, 2017; 2017 FC 685, paragraphs 13 to 18. 15 X (Re), paragraph 58. 16 Ibid., paragraphs 71 to 76. 17 Recording of the first part of the hearing before the RPD on September 28, 2017, 00:01 to 01:31:06. Recording of the second part of the hearing before the RPD on October 10, 2017, 00:01 to 01:15:12. 18 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, paragraph 45. 19 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 20 Aguilar v. Canada (Minister of Citizenship and Immigration), No. IMM-2728-11, Scott, February 3, 2012; 2012 FC 150, paragraph 42. 21 This document is reproduced at page 142 of the RPD record. 22 Recording of the first part of the hearing, 51:00 to 56:00. 23 RPD's reasons and decision, paragraphs 35 to 43, pages 8 and 9 of the RPD record. 24 Principal appellant's BOC Form, in response to question 2 a), page 12 of the RPD record. Recording of the first part of the hearing, 37:00 to 38:35. Recording of the second part of the hearing, 01:45 to 02:25. 25 This document is reproduced at pages 133 and 134 of the RPD record. 26 Recording of the second part of the hearing, 03:45 to 10:45. 27 RPD's reasons and decision, paragraphs 15 to 23, pages 5 and 6 of the RPD record. 28 Recording of the second part of the hearing, 11:30 to 15:25. 29 This document is reproduced at pages 133 and 134 of the RPD record. 30 RPD's reasons and decision, paragraphs 24 to 34, pages 5 and 6 of the RPD record. 31 Ibid., paragraphs 45 and 46, page 9 of the RPD record. 32 Nijjer v. Canada (Minister of Citizenship and Immigration), No. IMM-340-09, de Montigny, December 9, 2009; 2009 FC 1259, paragraph 27. 33 RPD's reasons and decision, paragraph 44, page 9 of the RPD record. 34 Recording of the second part of the hearing, 56:00 to 01:14:35. 35 Appellants' memorandum, paragraph 61, page 28 of the appeal record. 36 Joseph v. Canada (Minister of Citizenship and Immigration), No. IMM-5389-10, O'Reilly, May 16, 2011; 2011 FC 548, paragraph 12. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB4-02904 RAD.28.07 (2015.06.02) Disponible en français RAD File No. / No de dossier de la SAR : MB7-23393; MB7-23394 10