MB9-28912

RAD File / Dossier de la SAR : MB9-28912, MB9-28913 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXXXXXX XXXX Personne en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision December 6, 2020 Date de la décision Panel Me Robert Cox Tribunal Counsel for the person who is the subject of the appeal Humera Manzoor 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] This is an appeal of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) of Canada for having rejected the claims of XXXX XXXX, (hereafter, XXXX or collectively with his wife, "Appellants") and his wife, XXXX XXXX (hereafter, XXXX, or collectively with her husband, "Appellants,") for lack of credibility. [2] XXXX claim was joined with XXXX claim before the RPD and remains so joined before the Refugee Appeal Division (RAD). [3] XXXXis aXXXX XXXX, and the Appellants, who are both citizens of Haiti, claimed refugee protection based on alleged fears of persecution, reprisals and harm or, even, death at the hands of a cousin (hereafter the Agent of Harm) of one of XXXX XXXX (hereafter "the XXXX") who had died. XXXX reports that he XXXXandXXXX XXXX the XXXX for a XXXX XXXX in an underequipped XXXX centre before transferring the XXXX to a better-equipped XXXX where, unfortunately, the XXXX succumbed to his ailment. XXXX asserts that the Agent of Harm threatened his life, sought and continues to seek revenge against him for the death of the XXXX. [4] The Appellants contend that the Agent of Harm threatened XXXX with a machete within hours of the death of the XXXX and the same Agent of Harm, with associates, threatened XXXX on a second occasion and approximately a month following the initial threat against XXXX. The Appellants allege that because of these threats, they had no other option than to flee Haiti for the United States of America (U.S.A.) before entering Canada to seek refugee protection. [5] The RPD determined that XXXX was not a credible witness and that his testimony was so filled with contradictions and inconsistencies that it lacked credibility which undermined the whole of the Appellants' allegations of fear and their claim in general. The RPD determined that the Appellants do not have any nexus to the Convention and concluded that they are not persons in need of protection pursuant to section 97(1) of the Immigration and Refugee Protection Act (IRPA)1. [6] For their part, the Appellants raise two questions: (i) did the RPD commit "palpable errors" in the assessment of the Appellants' credibility; and, (ii) whether there is a viable Internal Flight Alternative (IFA) in Haiti for the Appellants and whether the RPD's section 96 and 97 IRPA assessments were "faulty". Through their counsel, the Appellants argue that credibility should not be the determinative issue in this matter since XXXX is a XXXX who has undertaken the XXXX XXXX and is obliged not to lie or express any misleading stories. The Appellants argue that XXXX should not be expected to know the traffic circulation or the timeframe and driving conditions between the XXXX centre in XXXX (where XXXX was XXXX) and the XXXX in XXXX XXXX XXXX (where the XXXX died). The Appellants assert that the RPD Member ignored XXXX XXXX of the XXXX and attempted to impose its own XXXX, and that both Haitian Police and the Haitian airport authorities erred in their respective reports and the stamps they placed in the Appellants' passports. The Appellants contend that the RPD arrived at an arbitrary decision with overly burdensome expectations about the precision of the Appellants' testimonies, and have requested a hearing in French before the RAD. DECISION [7] For the reasons which follow, the Appeal is dismissed. Like the RPD, the RAD finds that the determinative issue in this matter is credibility. Moreover, the RAD finds that the RPD correctly examined the whole of the Appellants' claim, that the Appellants do not have any nexus and that the Appellants have failed to demonstrate that there is a risk to their life or a risk of cruel or unusual treatment or punishment from which they require personal protection when they return to Haiti. ROLE OF THE RAD [8] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.2 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.3 The RAD has conducted its own independent assessment of all of the evidence in this case, including listening attentively to the audio-recording of the RPD hearing, and has applied a correctness standard in its analysis of this matter. ANALYSIS Oral hearing before the RAD [9] The Appellants requested an oral hearing before the RAD without submitting any new evidence but, rather, referred to evidence that the RPD determined was simply a repetition of the Appellants' allegations, the whole of which, the RPD concluded lacked credibility. [10] The rules of procedure with respect to appeals to the RAD are clear; pursuant to section 110(6) of the IRPA, the RAD cannot order an oral hearing in this case. The general rule is that the RAD must proceed without a hearing and on the basis of the record of the proceedings of the RPD.4 It is true that section 110(6) of the IRPA gives the RAD discretion to hold an oral hearing, as an exception to this general rule; however, the RAD can only hold such an oral hearing when there is additional documentary evidence5 and all the conditions of section 110(6) of the IRPA are met.6 In this case, the Appellants have not presented any additional or new documentary evidence and, as such, the RAD does not have discretion to hold a hearing in this matter. The Appellants' request for an oral hearing is, therefore, denied. No nexus or IFA [11] The RPD determined that the Appellants established no nexus to the Convention. The Appellants did not contest this finding. As such, the RAD will not undertake any analysis pursuant to section 96 of the IRPA for this matter. [12] Moreover, while the RPD Member did, in fact, pose questions to the Appellants about the potential for Internal Flight Alternatives (IFA) during the hearing and if, for example, there was a possibility that they could return to the region of Gonaïve in Haiti, the RAD notes that the RPD did not decide, however, that IFA was a determinative issue in this matter. As such, and because the RAD, like the RPD, has determined that credibility is the determinative issue for this matter, the RAD need not complete any IFA assessment. Appellants' Credibility [13] The RPD noted significant contradictions, inconsistencies or omissions between XXXX Basis of Claim (BoC) documentation, his narrative, his testimony and the Exhibits that were submitted in support of the Appellants' claim. The RPD determined that the incongruities resulting from XXXX testimony were so sufficiently important that they called into doubt, not only the general credibility of his testimony, but the overall credibility of the Appellants' allegations of fear. The major contradiction revealed by the RPD was the chronology of events provided by XXXX during his testimony versus the version of the events that he had provided in his narrative and which was depicted in the Exhibits submitted in support the Appellants' allegations of fear. The discovery of this contradiction led the RPD to question and re-question XXXX about the details of his claim, which subsequently led to the discovery of even further inconsistencies and omissions associated with his narrative and the Appellants' exhibits. [14] The Appellants counter argue and explain away these contradictions, inconsistencies and omissions as simply a series of errors committed by various branches of the Haitian authorities (e.g. the police and the airport security). They further contend that, because XXXX is a XXXX, he is obliged by professional oath to not only speak the truth but that he should not be expected to have detailed knowledge of the traffic circulation in Haiti and, more precisely, between the regions of XXXXand XXXX XXXX XXXX. Oath of XXXX vs. Maldonado Principle [15] It is a widely acknowledged tradition that XXXX XXXX upon the completion of their professional education and training, undertake the XXXX Oath;7 an oath to XXXX for and XXXX their future XXXX to the best of their abilities, to do no harm and to XXXX XXXX to the next generation. While the said oath is generally accepted as an expression of XXXX ethics, it is not a solemn oath by which XXXX undertake to speak the truth and it is certainly not an oath such as the one to which the Appellants offered their solemn affirmation at the outset of the RPD hearing. As such, the RAD is not, on a balance of probabilities, persuaded by the Appellants' contention that XXXX credibility cannot be questioned simply because he is a XXXX who has purportedly avowed to the oath of XXXX. [16] Further still, and perhaps more importantly, the XXXX Oath would not, and does not, prevail over the Maldonado principle by which the Appellants are presumed to benefit under Canadian law. However, the RAD further notes that even the bestowing of said benefit is not an absolute. That is, and although the Appellants may have only implicitly advanced an argument that XXXX testimony should be afforded said presumption, the RAD acknowledges and understands that the Maldonado principle is omnipresent during any RPD hearing, however, and with respect, the RAD, on a balance of probabilities, is not persuaded that it must afford XXXX the said benefit under the circumstances of the present matter. While the Maldonado principle is trite law within refugee claims, its applicability becomes moot when a claimant's testimony or the submitted documentary evidence lacks the basic tenets of common logic and is exposed to be so egregious as to defy rational reasoning. The RAD finds that the whole of such revelations can ultimately lead - as the RAD has so determined in this matter - to a negative credibility finding. Chronology of Events [17] With respect, the RAD refutes the Appellants' arguments, agrees with the RPD's decision and finds that XXXX restated, corrected and/or re-iterated explanations of the chronology of events originally alleged to have ensued at some point throughout the period of XXXX XXXX and XXXX XXXX XXXX 2018 are, at the very least, contradictory and inconsistent. Indeed, the RAD notes that even the Appellants' Memorandum of Appeal (MOA) contradicts XXXX testimonial depiction of the Chronology. [18] At the outset of the RPD hearing, XXXX, through his counsel, asked that the Police Report dated XXXX XXXX XXXX 2018 (i.e. Exhibit P-9) be modified such that it stipulate that the Agent of Harm uttered his threats and executed the whole of his actions against XXXX on XXXX XXXX XXXX 2018, as opposed to the date originally provided in the report, more precisely, XXXX XXXX XXXX 2018. To explain the need for this correction, XXXX asserted that the Police officer who was mandated to inscribe the complaint made an error and that the said error was then repeated when Exhibit P-9 - originally written in the Creole language - was translated and transcribed into the French language. Now in the MOA, however, XXXX, yet again, corrects the chronology of events and asserts that not only did the RPD Member misinterpret Exhibit P-9 but that he also misunderstood XXXX request for the correction thereof. That is, the Appellants, through their counsel, now revert to their original allegation that both the XXXX and the Agent of Harm first appeared at the XXXX XXXX centre on XXXX XXXX XXXX 2018.8 The Appellants' MOA provides the following: Page 11 My client confirmed that the police made a big error in their report about the arrival time in XXXX XXXX XXXX after the XXXX had expired. The report had been done upside down in Creole language with translated mistakes into the French language which should also be taken into consideration. Page 3, paragraph 12 The tribunal rejected this explanation in an arbitrary decision and they misunderstood my client in his testimony about this event which happened on XXXX XXXX 2018, instead of XXXX XXXX XXXX 2018. My client gave the orders to XXXX the XXXX to the XXXX where they were well equipped to XXXX. The XXXX name is XXXX XXXX XXXXdeXXXX XXXX XXXX XXXX. And the tribunal rejected this explanation as if the tribunal knew about the XXXX of this XXXX and how to XXXX him more than the XXXX himself. [Underlining added by the RAD] [19] Yet, the RAD notes that, at two distinct occasions during the RPD hearing,9 XXXX specifically stipulated that the Police made an error in Exhibit P-9. That is, XXXX asked the RPD to accept that the said police report should correctly stipulate that the XXXX first arrived at the XXXX centre and that the Agent of Harm executed the whole of his actions and threats against XXXXonXXXX XXXX XXXX XXXX 2018, rather than on XXXX XXXX XXXX 2018. It is abundantly clear to the RAD that there is a contradiction and an inconsistency. It is even more clear to the RAD that the contradiction and inconsistency lies, not with the RPD's analysis of the evidence, but, with XXXX testimony. For, after having listened to the whole of the recording of the RPD hearing, the RAD notes that the RPD Member himself even asked for a five minute suspension of the hearing to correctly and properly assess and arrange the numerous last-minute modifications the Appellants had petitioned to be added to their claim documentation.10 Following said brief suspension of the hearing, the RPD Member then returned, confirmed the modifications with the Appellants and their counsel, accepted the modifications and proceeded to question XXXX. As such, the RAD finds that the RPD correctly assessed and understood the Appellants' requested modifications to their claim documentation before it proceeded with its examination of XXXX. The RAD also finds that the RPD's examination led to the discovery and subsequent revealing of even further contradictions and inconsistencies with XXXX testimony. Put simply, there is still more! [20] Throughout the duration of the hearing, XXXX maintained that the whole of the Chronology transpired between the hours of 5 - 6 a.m. and 08:50 a.m. on XXXX XXXX XXXX 2018 (i.e. a total time period of no more than 3 hours and 50 minutes). More precisely, XXXX testified that the XXXX arrived at the XXXX XXXX centre at some point between the hour of 5 and 6 a.m. on XXXX XXXX XXXX 2018 and that the XXXX had two (2) XXXX XXXX during this time period before XXXX was finally able to "XXXX" him. XXXX also testified that, during this initial one-hour window, the Agent of Harm was in, at or near the XXXX XXXX centre demanding that XXXX release the XXXX into his custody. XXXX testified that the Agent of Harm was close enough to XXXX during this time to have verbally threatened him with his death if the XXXXdied. XXXX reports that after the XXXXwas XXXX, he immediately ordered his transfer to the better equipped XXXX XXXXdeXXXX XXXX XXXX XXXX XXXX XXXXaXXXX XXXX which is either 30 minutes or 90 minutes away from the XXXX XXXX by moto, according to XXXX testimony) where, according to XXXX testimony, the XXXX then died. As XXXX further testified, following the death of the XXXX, the Agent of Harm returned to the XXXX XXXX centre to, not only angrily and menacingly announce the XXXX death, but, throw rocks at the centre before he then left only to return, once again, brandishing a machete, with which he had threatened to kill XXXX. It was at this point, according to XXXX testimony, that XXXX escaped out of the back door of the XXXX XXXX and went directly to the Police Station in Grand-Goâve where he immediately filed a complaint with them at 8:50 a.m. (i.e. see Exhibit P-9). In short, XXXX testifies that the whole of these events (hereafter the Chronology) occurred within a total elapsed time of three (3) hours 50 minutes. [21] Despite repeated questioning of XXXX and repeated requests for clarifications and precisions about the inconsistent and contradictory elements of his testimony, XXXX vehemently maintained his version of the Chronology which the RPD rejected for lack of credibility. The RPD correctly revealed inconsistencies in XXXX XXXX XXXX testimony by referring him to his BoC form in which he had declared that the Agent of Harm had returned to the XXXX twice: (i) once on XXXX XXXX XXXX 2018, to announce the death of the XXXX and to throw rocks at the centre; and (ii) once on XXXX XXXX XXXX 2018, when the Agent of Harm threatened XXXX with death while brandishing a machete. Also, the RPD again reminded XXXX that he had originally declared that the XXXX first appeared at the XXXX XXXX on XXXX XXXX XXXX 2018 and the RPD Member also repeatedly asked XXXX to clarify if the XXXX had died two (2) hours after his arrival at the XXXX XXXX XXXX XXXX (as he so declared in his narrative and as it was so depicted in Exhibit P-9). Despite revealing these contradictions to XXXX XXXX he maintained and insisted of the veracity of his version of the events; a version which the RPD determined to be an implausible rendition of the Chronology; more specifically, that the Chronology transpired in its entirety on XXXX XXXX XXXX 2018 over a total time frame of not greater than 3 hours 50 minutes. [22] The RAD finds that the RPD correctly revealed that both XXXX narrative and the XXXX XXXX XXXX 2018 Police Report stipulate that the XXXX died two (2) hours following his arrival at the XXXX XXXX XXXX XXXX and that neither of said documents can be read or interpreted in any other manner. While XXXX attempted to explain away these later stipulations by testifying that there was yet another error in the Police Report (despite the modifications he had priorly made to said document at the very outset of the RPD hearing) and that he interpreted his narrative to correctly explain that the XXXX had died two hours after XXXX had begun his initial care of him (i.e. two hours after the XXXX initial arrival at the XXXX centre between the hours of 5 and 6 a.m.), the RAD is not, on a balance of probabilities, persuaded by these explanations. Like the RPD, the RAD finds that XXXX testimony about the Chronology is so sufficiently filled with incongruities that it undermines, not only his credibility, but, the general credibility of the Appellants' allegations of fear. [23] What's more, as the RAD notes, the Appellants' MOA now alleges and contends that it was the RPD which erred in its analysis of the Chronology and the MOA, yet again, attempts to modify the Appellants' story. More precisely, at page 2 and 3 of the MOA, the Appellants assert that XXXX XXXX XXXX 2018 is, in fact, the initial date of the XXXX XXXX to the XXXX centre11 and that the Agent of Harm returned to the XXXX XXXX on XXXX XXXX XXXX 2018.12 That is, the Appellants contend that it was the RPD which misunderstood XXXX testimony and incorrectly analyzed the said dates. Respectfully, the RAD finds this contention to be completely unacceptable. After reviewing the whole of the evidence and after having listened attentively to the whole of the recording of the RPD hearing, the RAD finds that it is irrefutable that XXXX insistently testified and vehemently maintained that the whole of the Chronology transpired on XXXX XXXX XXXX 2018. Indeed, the RAD notes that on two occasions during the hearing, he specifically requested that the RPD accept corrections to exhibits such that they may so reflect his version of the Chronology. What's more, even the Appellants' counsel recognized and acknowledged XXXX insistent testimony on this Chronology when, during her submissions, she, herself, stated that XXXX had a tendency to testify "....with a lot of repetition and with precision that is repetitive...and [that] he maintained his position".13 [24] Further still, if the above depiction of the Appellants' contradictory and inconsistent testimony and evidence is insufficient, there remains more such depictions. On page 3 of their MOA, the Appellants attempt to adduce further evidence of the RPD's incorrect and "arbitrary" analysis of the Appellants' claim. That is, the Appellants contend that, as a further demonstration of the RPD's incorrect depiction of their lack of credibility, the RPD incorrectly examined their passports during the RPD hearing. According to the Appellants' MOA, the RPD incorrectly determined that their passports did not coincide with their boarding passes. The Appellants state: The applicants left Haiti for the US on XXXX XXXX XXXX 2018; in fact, the claimants left Haiti on XXXX XXXX XXXX 2018 as it shown on their boarding passes. The Haitian airport authorities made a mistake on XXXX XXXX XXXX passport by putting the wrong date on the stamp. They put XXXX while in reality it was XXXX XXXX 2018 which can be seen on his passport and not his wife's. [Underlining added by the RAD]14 [25] As a consequence of this allegation, the RAD undertook an examination of the Appellants' passports and the boarding passes submitted into evidence, and, as a result of said examination, the RAD must, once again, refute the Appellants' contentions. There were two boarding passes submitted into evidence by the Appellants. The first is a boarding pass in the name of XXXX for his voyage from Port-au-Prince to Fort Lauderdale, U.S.A. on XXXX XXXX XXXX 2018. The second boarding pass is in XXXX name for her voyage from Fort Lauderdale, U.S.A. to New York city on XXXX XXXX XXXX 2018. There is no evidence which conclusively demonstrates that the Appellants travelled together, as the two boarding passes are for two different flights in two different names. It would be speculative for the RAD to assume that each of the Appellants travelled together on the same flights on the same dates without viewing credible evidence that is demonstrative of said fact. [26] Moreover, the information from the supplied boarding passes is at variance with the information provided from XXXX handwritten declaration in his Annexe 12 IMM0008 form, wherein, at question 9, XXXX declared that he had left Port-au-Prince, Haiti, on XXXX XXXX XXXX 2018, transiting through Fort Lauderdale and arriving in New York City, U.S.A. Further still, on page 31 of XXXX passport there are two wet stamps; (i) one from the United States Department of Homeland Security indicating entrance into the U.S.A. on XXXX XXXX XXXX 2018; and (ii) one stamp simply indicating the date "XXXX XXXX XXXX 2018". Setting aside any question of how and why XXXX copy of his passport would have been stamped in XXXX 2018 when he was already in Canada and his passport was in the possession of the Canadian Border Security Agency (CBSA), the RAD notes that XXXX passport, BoC documentation and boarding pass do not coincide and are incongruous with the assertions advanced in the Appellants' MOA. XXXX passport does contain a wet stamp from the Haitian airport authorities indicating that she departed from Haiti on XXXX XXXX XXXX 2018, and that she entered the U.S.A. on XXXX XXXX XXXX 2018. The RAD also notes that the copy of her passport also contains the unexplainable "XXXX XXXX XXXX 2018" wet stamp. In this sense, the RAD cannot find any reason or evidence of any error on the part of the Haitian airport authorities, as was so alleged by the Appellants,15 with regards to any incorrect application of wet stamps by said authorities. Further still, the RAD cannot find any error committed by the RPD in its examination of the Appellants' passports or its questioning of the Appellants for their reasons for having sought visas for the U.S.A. in XXXX 2018 (i.e. shortly before their departure from Haiti).16 Finally, and perhaps most notably, the RPD decision did not even reference the Appellants' passports for which the RAD need apply any analysis under the standard of correctness. Arbitrary decision and breach of procedural fairness? [27] The RAD respectfully reminds the Appellants that the RPD's obligation is to examine whether a claimant has satisfied their burden to demonstrate that there is either a serious possibility of persecution based on a Convention ground, or that, on a balance of probabilities, a claimant faces a personal risk of harm to life or of cruel or unusual treatment or punishment. [28] In this matter, the RAD finds that the RPD conducted a fair and impartial hearing, generously accepted late evidence and modifications to the Appellants' claim documentation (and, in fact, did so notwithstanding that the Appellants had more than a year to make or submit such modification prior to the date of the RPD hearing). Furthermore, the RAD finds that the RPD carefully and empathetically studied the whole of the evidence before it, and unbiasedly questioned the Appellants about their allegations of fear. The RAD also notes that, after having conducted the whole of its examination, the RPD took the matter under deliberation and rendered a clear and succinct written decision in which it determined that the incongruities and inconsistencies it had discovered sufficiently demonstrated that the Appellants and their allegations of fear lacked credibility. As such, the RAD does not find that the RPD's decision was in any way arbitrary or that the RPD attempted to subject the Appellants to overly burdensome expectations with regards to the preciseness of their respective testimonies. [29] For all the above-described reasons, and like the RPD, the RAD finds the Appellants' testimony and evidence was so sufficiently inconsistent and contradictory that it lacked credibility and undermined the whole of the Appellants' allegations of fear. DETERMINATION [30] The Appeal is rejected. The RAD agrees with the decision of the RPD and finds that the Appellants have not credibly established their burden that there is a serious possibility of persecution or that there is a prospective risk to their life or a risk of cruel and unusual treatment or punishment, or a danger of torture when they return to Haiti. As such, the Appellants are not Convention refugees or persons in need of protection pursuant to sections 96 and 97(1) of the IRPA. [31] The RAD dismisses the appeal and confirms the decision of the RPD, the whole pursuant to section 111 (1)(a) of the IRPA. (signed) Robert Cox Me Robert Cox December 6, 2020 Date RC/in 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27 (IRPA). 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 3 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 110(3). 5 Ibid. 6 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015, 2015 FC 624, at para. 32. 7 The Oath of XXXX is an oath of ethics historically taken by XXXX to do no harm and to the principles of XXXX confidentiality and non-maleficence towards their XXXX. 8 P-2, Appellants' Record, Appellants' MOA, paragraph 3 of page 4. 9 Recording of RPD Hearing on October 29, 2019 : Minutes: 00:03:50 to 00:13:15 and at Minutes: 00:46:00 to 00:46:40. 10 Ibid: Minute 00:17:40 to 00:18:00. 11 P-2, Appellants' Record, Appellants' MOA, 4th paragraph on page 2. 12 P-2, Appellants' Record, Appellants' MOA, 7th paragraph on page 2. 13 Recording of RPD Hearing on October 29, 2019 : Minutes: 02:04:30 to 02:05:25 14 P-2, Appellants' Record, Appellants' MOA, first paragraph of page 3. 15 Ibid. 16 Recording of RPD Hearing on October 29, 2019 : Minutes 01:42:00 to 01:45:00 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (January, 2020) Disponible en français 2 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