MB9-08843

RAD File No. / No de dossier de la SAR : MB9-08843 MB9-08844 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision February 19, 2020 Date de la décision Panel Me Agnès Connat Tribunal Counsel for the persons who are the subject of the appeal Me Alima Racine 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 (the male appellant) and his wife, XXXX XXXX XXXX (the female appellant), are citizens of Haiti. [2] They fear for their lives because they were threatened and attacked by individuals who criticize the male appellant for having worked for the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX [3] The Refugee Appeal Division (RAD) confirms the determination of the Refugee Protection Division (RPD) that XXXX XXXX and XXXX XXXX XXXX are neither Convention "refugees" nor persons in need of protection. The appeal is dismissed. Appeal of the Refugee Protection Division's decision [4] The RPD rejected the refugee protection claim for credibility issues due to significant omissions, contradictions and inconsistencies at the heart of the claim. It also concluded that the female appellant had failed to establish a serious possibility of persecution in Haiti simply because she is a woman. The appellants' arguments [5] The appellants allege that the RPD erred by finding that they were not credible and that either there were no omissions or that the explanations that they provided are acceptable. They criticize the RPD for not giving probative value to a letter of complaint and a letter from a psychologist. Determinative issue that the Refugee Appeal Division must address [6] Did the appellants credibly establish that they would face a reasonable fear of persecution or a risk to their lives or cruel and unusual treatment if they were to return to Haiti? Role of the Refugee Appeal Division in this appeal [7] After an independent analysis of the evidence, including the hearing, the RAD reviewed the RPD's decision by applying the standard of correctness and in light of the Guidelines relevant to the female appellant's situation.1 ANALYSIS Credibility [8] The appellants allege that they received death threats because the male appellant worked as a radio operator for XXXX. The RPD accepts that the male appellant worked for XXXX between 2008 and 2017. I see no error with this finding and agree with it. [9] The appellants swore that the facts on the record are complete, true and correct. There is then a presumption that these facts are true, except if there is a valid reason to doubt them. On a balance of probabilities, the appellants' testimony is not credible with respect to the following areas. The appellants' testimony at the hearing contradicts the allegations in their Basis of Claim Form [10] The RPD notes two material omissions concerning the incidents of intimidation in 2013 and January 2017. It criticizes the male appellant for failing to mention in his Basis of Claim Form (BOC Form) that he was threatened twice. [11] The appellants claim that the RPD erred by finding omissions, even though they are not. They note that the male appellant generally describes the facts and that the RPD misinterpreted what they meant. [12] The RPD correctly found that there were omissions from the BOC Form. Their account also includes contradictions with their testimony at the hearing. [13] At the hearing, the male appellant explained that strangers had approached him in 2013 when he was five minutes away from his work. They allegedly tried to intimidate him by telling him that he works for XXXX with white people who brought cholera. A few months later, he went to Tabarre; however, the male appellant did not specify a date. While he was walking, two individuals asked him for money, and the same thing occurred. They told him that he works for XXXX. He claims that he panicked because it was the second time. He then explained that nothing happened until 2017. [14] In his BOC Form, he writes: [Translation] 4. Since 2013, while I was working in Port-au-Prince, I received threatening messages verbally from strangers who often stated: "sa se youn nan neg kap travay ak blan ki pote kolera nan peyi a," which means "he is someone who works for the white people who brought cholera to the country." 5. ... 6. I tolerated all these threats to the point or in March 2017, strangers affected my family directly, that is, my wife Sherley; for me, it was clear that the threats were taking place when people threatened my family directly. [emphasis added] [15] The appellants explain that the wording in the BOC Form must be interpreted as what they meant, that is, that there were several incidents and that the incidents in 2013 and January 2017 are included. It is up to the refugee protection claimants to indicate the harm, treatment or threats received as accurately as possible in their BOC Form. They can certainly clarify their story during the hearing without contradicting themselves. To account for the omission, the male appellant alleges that the incidents in 2013 and January 2017 are included in general terms. However, the male appellant's written account is very detailed and consists of 39 paragraphs. He provides dates, times and details. For example, at paragraph 11 in his account, he states: [translation] "[i]n fact, returning to the facts, my wife was out on March 28, 2017, and coming home at around 8 p.m. to Duval-Roche in the Croix-des-Bouquets commune on the way to Malpasse; at that hour, it was completely dark out, and there were no street lights on the road." His explanation that the facts alleged in his written account are general contradicts his account, which is very detailed. [16] Apart from omissions, at paragraphs 4 to 6 of the appellants' account, they use (underlined) words that, when read together, suggest that they were constantly receiving threats between 2013 and 2017, which is contrary to what they had stated at the hearing. [Translation] "I received threats of intimidation...strangers who often stated...I endured all these threats to the point...," even though the appellants testified that there were two incidents in 2013 and then nothing until the incident in January 2017. [17] For the appellants, the RPD found a lack of credibility without giving them the opportunity to account for the omission of the threat in January 2017 from the BOC Form. However, the male appellant spontaneously stated that he had not mentioned it in his BOC Form when the RPD asked him what happened in 2017. [18] The omissions and contradictions between the written account and the testimony undermine the appellants' credibility. The appellants' behaviour is not that of people who fear for their lives or their safety [19] The RPD found that the appellants' behaviour was inconsistent with that of people who fear for their lives or their safety and that this undermines their credibility. It notes the following behaviour: not filing a complaint with the police about the verbal threats, failing to report the facts to the male appellant's employer, and the fact that the male appellant did not leave his job and that the female appellant did not move, but hid at her home for 15 days. [20] The appellants allege that the RPD erred by drawing a negative inference from their failure to file a complaint after the verbal threats. They claim that the RPD should have accepted the female appellant's explanations that they did not file a complaint because they knew that the police would not intervene in that type of threat. [21] The RPD's finding that the appellants' credibility is undermined by their inconsistent behaviour with that of people who fear for their lives is correct. [22] When the male appellant was approached in the street near his work in 2013, he experienced two incidents that he considered to be threatening. At the hearing, he explained that he had not filed a complaint with the police because he knew that it would not help for this type of mischief. The male appellant is not an average citizen. He is a XXXX XXXX for XXXX, specifically a XXXX XXXX, and he XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Haiti by using the communications when required. Among other things, when a XXXX XXXX XXXX reported problems, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Through its mandate, XXXX contributed to improving public security2 and trained between 4,000 and 5,000 police officers.3 The male appellant worked in an organization and an area close to the police authorities. When he was approached near his work in 2013, someone in his position should have reported it to his employer as a precaution and out of a sense of duty. He failed to do so. He did not file a complaint in January 2017, even though he was with his wife at the time. In their memorandum, the appellants explain that they did not file a complaint because they were only verbal threats that they did not consider to be serious. However, the female appellant testified at the hearing that she was afraid of the threats in January 2017. Due to his position, the male appellant had more power to act on the situation than an average citizen because he worked for XXXX, which is an organization involved in XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. By not filing a complaint with the police or his employer to protect his family, even though he was close to the authorities responsible for the country's security, the male appellant did not have the behaviour of someone who fears for his life. This undermines his credibility. [23] For the appellants, the RPD erred by finding that the female appellant had hid in her home after her attackers followed her. They explain that she was attacked after she had gotten off public transit before arriving home and that she was safe there. [24] The RPD's finding is correct. After the female appellant was attacked in March 2017, the appellants stayed at their residence. The male appellant testified that he had continued to work at the same place. By staying home, the female appellant may have reduced the risk of being found, as the appellants submit in their memorandum, but the male appellant could have pursued the individuals that wanted to attack him and his family. They allege that people personally targeted them because of the male appellant's job. However, he still allegedly went to work. He did not explain that he had taken specific safety precautions. The female appellant testified that the children had stayed with her until April 12, the day before she left for Nazon. She added that she had taken them to her sister's home in Turgeau so that [translation] "my condition would not affect them" because she was depressed at that time, rather than protect them from potential attackers. By staying at their residence with their children and not changing their normal commute to work, the appellants did not have the behaviour of people who fear for their lives, even if the female appellant did not go out. Their credibility is undermined. [25] The appellants submit that the RPD erred by drawing a negative inference from the fact that they had stayed at the same address between 2013 and 2017, even though they allege in their BOC Form that they feared for their safety during that period. For them, the threats were never made at their residence, but rather in the street, and they fled as soon as the threat came closer to home. [26] The RPD's conclusion is correct. The appellants did not flee once the threat came closer to home. Rather, they testified that they had waited until the end of the XXXX contract and had the financial means. The female appellant was attacked on March 28, 2017, and states that she left her home only on April 13, 2017, that is, more than 15 days after the attack. In his BOC Form, the male appellant explains that after April 12, they decided to go to the United States and bought a ticket for XXXX XXXX, 2017. At the hearing, he explained that they had not purchased a ticket before because they could not afford it. However, he also states that it was only on May 22, 2017, that he panicked and noticed that the threats were serious when individuals had approached him in the street to claim responsibility for his wife's attack. The male appellant continued with the same job in Port-au-Prince until his contract ended on May 31, 2017. The appellants were staying outside of Croix des Bouquets, in Meyotte, Nazon and Trugeau, which are all in the Port-au-Prince region. They did not leave for other areas in Haiti, but stayed in the same area where individuals were threatening them. The appellants' behaviour is not that of people who fear for their lives, which undermines their credibility. [27] The appellants submit that the RPD erred in rejecting the letter of complaint submitted to the justice of the peace in the Croix-des-Bouquets commune and a psychologist's letter based on their doubts about their credibility. According to them, there are no issues with the authenticity of the documents or contradictions for them to be rejected. [28] The RPD's finding is correct. The documents filed, in and of themselves, cannot offset the credibility issues. [29] The letter of complaint states the facts as the female appellant had explained to the justice of the peace. The only conclusion that I can make from this document is that the female appellant filed a complaint and described what had happened to her, as she alleges in her refugee protection claim. This document confirms what the female appellant testified, but not that the facts are true. It is not an investigation report or even the justice of the peace's report. I give no probative value to it. [30] The psychologist's letter is the written testimony from the male appellant's therapist friend who recounts that he had been told about the facts alleged by the appellants. He also mentions the female appellant's psychological state and trauma. The psychologist is a professional. He states that his patient was in a state of shock, that he saw her three times and that she had difficulty reintegrating into her community. [31] When the female appellant described her attack, she was very emotional and clearly described the circumstances of the attack. Given her testimony and the psychologist's clinical findings, I accept that the female appellant was physically assaulted. However, in light of the appellants' significant credibility issues, I give no probative value to that letter to establish that the attack took place in the alleged circumstances and because of the male appellant's job. Concluding observations regarding credibility [32] The RPD also found that the fact that the male appellant kept his job at XXXX, despite fearing for his life, is inconsistent with the alleged fear. I reviewed this uncontested finding by the RPD and find no error. I agree with this finding. [33] I reviewed each of the arguments raised by the female appellant. I conclude that the RPD did not err. The appellants are not credible. [34] The appellants failed to credibly establish that they would face a reasonable fear of persecution or a risk to their lives or cruel and unusual treatment if they were to return to Haiti. The female appellant failed to establish that she would face a serious possibility of gender-related persecution [35] The appellants are challenging the RPD's conclusion that, since the female appellant's allegations are based on those of the male appellant and that she did not allege fearing anyone other than the people who had threatened her husband, she failed to establish that there was a serious possibility of persecution in her particular case simply because she is a woman. [36] I find no error in that conclusion and agree with it. CONCLUSION [37] The appeal is dismissed. The RAD confirms the RPD's determination that XXXX XXXX and XXXX XXXX XXXX are neither Convention "refugees" nor persons in need of protection. Agnès Connat Me Agnès Connat February 19, 2020 Date IRB translation Original language: French 1 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 2 Archive - National Documentation Package (NDP) on Haiti, July 20, 2018, Tab 2.4: Haiti. World Report 2018: Events of 2017. Human Rights Watch. January 2018. 3 Archive - NDP on Haiti, July 20, 2018, Tab 2.5: Rapport de mission en République d'Haïti du 26 mars au 7 avril 2017 [report on mission in the Republic of Haiti from March 26 to April 7, 2017]. France. Office français de protection des réfugiés et apatrides. September 15, 2017. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-08843 MB9-08844 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