MB9-25900

RAD File No. / No de dossier de la SAR : MB9-25900 MB9-25901 / MB9-25902 / MB9-25903 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 11, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal Me Claudette Menghile Conseil des personnes en cause Designated representative 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, citizens of Haiti, and two minor children, XXXXand XXXX XXXX, citizens of the United States, against a Refugee Protection Division (RPD) decision rendered on September 25, 2019, rejecting their claim for refugee protection. [2] It should be noted, for the benefit of the reader, that this case required several hearing sessions. At the start, only one account was submitted by the appellants. At the last hearing, the female appellant submitted an addition to her spouse's account that put things in a different light. [3] The male appellant states that he is pursued by members of the PHTK, the party in power, because of his activism in the Pitit Dessalines [children of Dessalines] party. He submits that he went to Brazil in late 2011 until late 2014. He decided to return to Haiti to become involved socially and politically and, in XXXX 2015, he began to campaign for the Pitit Dessalines party. After the XXXX 2015 elections, he received anonymous calls from PHTK supporters, threatening to kill him and his family. He submits that on XXXX XXXX XXXX 2015, his house was vandalized while he was out by heavily armed individuals claiming to represent the PHTK. On XXXX XXXX XXXX 2015, he left Haiti. He arrived in the United States in XXXX 2016. [4] As for the female appellant, she states that she fears her paternal uncle in Haiti. The uncle, not happy with the piece of land he inherited in XXXX 2013, had confrontations with his brother-the female appellant's father. She submits that, three days later, that uncle killed her sister and spread toxic products where they lived, which made her very ill. She states that her father, concerned for her safety, sent her to Brazil on XXXX XXXX XXXX 2014, where she was able to work for a short period of time. She left Brazil in XXXX 2016 to go to the United States, after a long journey through Central America where she was forced to sleep with a man who helped her. She states that she found out she was XXXX upon arriving in the United States, in XXXX 2017, where she met the male appellant shortly after. The appellants arrived in Canada on XXXX XXXX XXXX 2017. [5] The RPD rejected the refugee protection claims for a lack of credibility that became apparent during testimonies in which contradictions and omissions were noted. The appellants are asking the Refugee Appeal Division (RAD) to set aside the determination of the RPD, refer the matter to the Immigration and Refugee Board of Canada (IRB), Refugee Protection Division, for re-determination and give any other directions that it considers appropriate. [6] On appeal, the appellants submit the following arguments: 1. The RPD did not consider the female appellant's culture, level of education, profile and Guideline 4, which would have led it to understand why they stated at the start that the male appellant was the father of the minor appellants (shame at the circumstances of her XXXX, etc.); 2. The RPD was microscopic in its analysis of the claim and did not consider the entire testimony and explanations; 3. The omission regarding the threats against the male appellant's daughters and the confusion as to the name of his father's killer are not significant; 4. The RPD did not consider the male appellant's profile (low level of education); he omitted his time in Brazil from the U.S. asylum application [translation] "because he was not asked that question and, in his opinion, it was not material to his application for asylum"; 5. Contrary to the RPD's reasoning for not giving any probative value to the documents, [translation] "...the PHTK members are clearly named in the report of the Justice of the Peace and they are identified as being responsible for the vandalism of the male appellant's home...with regard to the police report, the PHTK is not identified as such, only as responsible for the vandalism"; 6. With respect to the female appellant's explanations regarding the cause of death and illness among members of her family-the Voodoo priest had confirmed that the uncle was involved-the RPD [translation] "really had to look beyond what might seem absurd as traditional religious beliefs and see that there was circumstantial evidence." [7] The appellants are not asking to present new evidence under subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and are leaving it to the RAD to decide whether to hold an oral hearing under subsection 110(6) of the IRPA. [8] The Minister's representative did not intervene on appeal. [9] The RAD wishes to point out that, in this particular case, it considered Guideline 4 regarding women.2 DETERMINATION [10] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX, citizens of Haiti, and two minor children, XXXXandXXXX XXXX XXXX are not "Convention refugees" or "persons in need of protection" within the meaning of sections 96 and 97 of the IRPA. [11] The appeal is dismissed. SCOPE OF THE APPEAL [12] For questions of fact, of law and of mixed fact and law, the RAD must apply the correctness standard in accordance with Huruglica.3 [13] I conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, in order to form my own opinion about this refugee protection claim and determine whether the decision rendered by the RPD is correct. ANALYSIS [14] Having reviewed all the evidence on the record, both testimonial and documentary, the RAD arrives at the same conclusion as the RPD, namely, that the appellants are not credible. [15] The appellants are of the opinion that the RPD failed to properly assess their credibility and that the impact on the decision is such that the appellants would not be persecuted in their country. [16] The very essence of this case lies in the appellants' credibility. [17] The RAD notes that the appellants' testimony was laboured. Many times, the answers provided were not related to the presiding member's questions. As a result, the RPD asked the male appellant to explain how he met the female appellant. The surprising response was as follows: we were still meeting, but the words that charmed her came at the end of 2013. She fell for me in 2009, changed to XXXX 2013. He added: I always saw her because I was doing XXXX work. He continued by stating: I was senior XXXX, I also worked as XXXX XXXX. These few examples are highlighted to demonstrate that the testimonies were difficult and they often deviated from the questions asked. [18] The first argument raised in the memorandum concerns the application of IRB Guideline 4. The appellants state that the RPD failed to consider the culture, the profile of the female appellant, which led to the statement that the male appellant was the father of the young appellants in this file, which is not the case. The RPD noted the female appellant's lengthy testimony regarding her reasons for leaving Haiti, which can be summarized as fears of attacks on her husband because of his political activities. What is his testimony on the subject? [19] It should be noted that this case required several sessions. The first part had to be adjourned for lack of time; then, another hearing to obtain the minor appellants' birth certificates; and then, the female appellant submitted an amended account that required explanations. The RAD reiterates that it is sensitive to the fact that many women may fear in thought and actions the acts of violent persecutors. In this case, the female appellant suffered rape at the hands of a smuggler while travelling to the United States. It should be noted that, at the start, the appellants submitted that the two minor children were born of their union. This was shown not to be true during the course of the hearing. Whether it was embarrassment or repression, it is clear that the appellants met in XXXX 2016, even though at the start of testimony the female appellant stated that they became a couple in XXXX 2014. An entire part of the story submitted in support of their claim was thus invalidated. [20] The second account submitted after the first part of the hearing contradicted the statements contained in the first text, which undermines their credibility. The RAD is prepared to accept amendments to forms, whether those completed at the border port of entry or even the information forms submitted to the IRB, when a person is presenting explanations and modifies the errors noted at the first opportunity. However, when something is not quite right in the course of a hearing, where the panel asks for the birth certificates of the minor children and, from that point on, an individual's account becomes invalid because the information required substantially changes the initial account, it discredits the refugee protection claimants. [21] Shame cannot be used as a reason for trying to minimize the errors previously committed. In addition to the fact that the male appellant is not the children's father, the account submitted contains a great deal of amendments that are unrelated to the XXXX XXXX and the paternity of the male appellant. The appellants add in point two of their memorandum that the RPD carried out a microscopic analysis of the appellants' files. To start, the RAD would like to point out that the female appellant's testimony was difficult regarding the dates of her spouse's stays in Brazil. There is confusion with respect to criminals going to the male appellant's home. The female appellant testified that criminals were looking for him after they became a couple in 2014. She added that if they did not find her husband, they would come after her. When asked to specify when the criminals came to the house looking for the male appellant, she stated that she could not say precisely when. She added that her husband had left for Brazil before in 2011. He returned to Haiti in 2015 and [translation] "after he left, he was in Brazil, he returned to Haiti." Much of the testimony from the first part of the approximately three-hour hearing was invalidated because the appellants admitted they did not meet until XXXX 2016. [22] The microscopic analysis criticized by the appellants was therefore justified by the undetailed and non-specific answers provided by the appellants. The RAD offers another example of an answer given by the male appellant regarding his stays in Brazil. The male appellant stated that he arrived in Brazil at the end of 2011 and returned to his country in XXXX 2015. He added that he lived there for a year or two. The female appellant testified that he left Haiti for Brazil at the end of XXXX 2011. When confronted with the timeframes of these stays, the male appellant stated that he stayed in Brazil for two or three years. The trips to and from Brazil are not mentioned in the account submitted and the forms completed. The female appellant's only explanation to the panel: [translation] "I put all the dates where I was, I thought they had all that information...It may not be mentioned, but the dates are done, the dates are for example...." [23] The RAD is of the opinion that following this portion of the appellants' convoluted testimony, the RPD was entitled to ask for explanations to clearly understand the information the appellants were providing to the panel. These laboured and villainous explanations given by the appellants are noteworthy to say the least. Faced with this, the RPD had no choice but to require additional information. It was not a microscopic analysis in this case, but further analysis of the testimonies that were unclear to say the least. [24] The RAD is of the opinion that the RPD did not err in its assessment of these points. [25] Another point raised in the memorandum concerns the threats that the male appellant's children received. The omission regarding threats against the children (from a previous relation) and the confusion with respect to the name of his father's killer are not significant in their opinion. The RPD noted this omission in its decision. When asked to explain this omission in the accounts submitted, the male appellant answered: to do that, I would have had to write down every day stating today what was said, tomorrow this is what was said, and again this is what was said.... He later testified: they have been receiving threats since 2016, I didn't take it seriously, I didn't pay much attention to that! The RAD has no choice but to reject these explanations because, in addition to the fact that these are significant threats against his own children, the male appellant had the opportunity to write his account, correct it and amend it and, despite all that, this important information is missing from the account. Once again, this discredits the appellants' file. [26] In the memorandum, the male appellant claims that the RPD did not consider his profile in his failure to mention his time in Brazil. The RPD noted the discrepancies between the U.S. asylum application and the Canadian refugee protection claim with respect to the time spent in Brazil, place of residence and activities. What is his testimony on these subjects? [27] In the application for asylum he filed in the United States, the male appellant stated that he lived in XXXX from 2009 to XXXX 2015. In addition, he was a XXXX from 2013 to XXXX 2015. When asked for details on these points, the male appellant stated that as a Haitian [translation] "I am always going to put my Haitian address." With regard to the failure to mention that he lived in Brazil, he stated: [translation] "I was not asked, if I had been asked, I would have said so." In addition, he added: It could be that the person who was translating, who was filling out, made a mistake when completing the form. Furthermore, in the application for asylum with our neighbours to the south, he states that he was beaten up by PTHK supporters, whereas this information is not mentioned in the Canadian refugee protection claim. [28] The RAD cannot accept the statement in the memorandum that the male appellant has little education and that, as a result, these omissions in the refugee protection claim are to be excused. Having little education means that an individual may not express himself or herself with the ease and authority that another person might. However, the numerous omissions are not the result of the level of education, but have more to do with failing to mention certain points. [29] Again, the RAD is of the opinion that the RPD did not err in its assessment of this point. [30] The next point raised by the appellants concerns the police report and the justice of the peace report (exhibits P-5 and P-6, pages 235 and 236 of the RPD record). They claim that the PTHK members are named in the report and the police report as being responsible for the vandalism of the male appellant's home. The RPD states that these documents do not support the fact that the male appellant was attacked by criminals from the PTHK. [31] Indeed, the two visions are not antonymous. The male appellant states that the PTHK supporters are identified as those responsible for the acts of vandalism on his property. It is his testimony that is reiterated by the justice of the peace. It is not a final conclusion on an act that occurred in the past. It is the statement the male appellant made to the justice of the peace. The RPD states that these two documents do not support the fact the male appellant was attacked by supporters of that political party. It would have been possible to have the results of the authorities' investigation into this matter. The male appellant's testimony regarding his fear and this incident is singular. He stated that he has feared the PTHK supporters since XXXX, corrected to XXXX 2000. He amended the year to 2015. He gave a diatribe on the senatorial elections in which he stated that, in XXXX 2015, he went around, he caused disturbances, he committed election fraud and that the supporters of the other parties hated him. He associates his personal problems with his activism. In the U.S. asylum application, he states that he was beaten up by supporters of the PTHK, but no mention is made in the Canadian documents other than the fact that he received telephone calls. When asked to explain this notable difference, the male appellant testified [translation] "it's a written mistake, the big problem was my house was damaged, that if they didn't hit you, but someone goes to your home, that's a different thing." [32] The RAD notes the male appellant's contradictory explanations regarding this part of the account dealing with activism. With these answers, the RAD cannot reach any definitive conclusions. [33] The last subject addressed in the memorandum concerns the female appellant's explanations regarding the cause of death and illness among members of her family. She attributes all these difficulties to voodoo. Paragraph 35 of the memorandum reads as follows: The Refugee Protection Division member really had to look beyond what might seem absurd as traditional religious beliefs and see that there was circumstantial evidence. The RPD states in its decision that the female appellant failed to establish that her sister had been poisoned by her uncle or that he was responsible for her father's bipolar disorder and the inflammation problems she suffered from because of a spell cast by a Voodoo priest. What about the testimony that was heard? [34] After amending her account, the female appellant stated that she fears members of her family as the result of the division of her grandfather's land following his death. She testified that some individuals gave her father an illness. Her sister is also suffering from an illness. In addition, the female appellant is also ill. Her father is confined to the home of a Voodoo priest. He was doing well until some individuals cast an even stronger spell on him so he would take sick again. We learned during the hearing that the female appellant's sister had died as a result of a powder that was put in her plate. She died as a result of ingesting this food. When asked to explain this addition to the account, the female appellant replied: I thought I would tell you with the questions you were going to ask me. All this information was unknown in the first account submitted. She added: it is because I did not do that account, I did an account with Fritzson and the person who was supposed to help him do his account. [35] She continued to explain, stating before the panel that the Voodoo priest with his cards stated that it was an illness cast on her sister by her father's brother. In addition, one sister was attacked through an aggressive treatment offered by a seer, a Voodoo priest. [36] The RAD understood that the female appellant's father appears to have a psychiatric illness, that he is restrained at times and that the treatments do not appear to be providing any relief to the patient. Besides the addition of the deceased sister, the contradictions between the accounts submitted in support of their refugee protection claim, it is difficult to reconcile the female appellant's testimony with the accounts submitted. A death certificate was submitted (Exhibit P-6, page 241 of the RPD record). This document reports a death but does not indicate the cause. This part of the testimony is quite confusing. It is difficult for the RAD to establish any connection between the appellants' allegations and the manifestation of the supernatural that they have experienced. [37] For the reasons set out in this decision, the RAD is of the opinion that the RPD rendered the correct decision and the one that should have been made. REMEDY [38] For these reasons, the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXXand XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [39] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin March 11, 2020 Date IRB translation Original language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c.27). 2 Immigration and Refugee Board of Canada. Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. Guideline issued by the Board pursuant to subsection 65(3) of the Immigration Act. Effective November 13, 1996. 3 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-25900 MB9-25901 / MB9-25902 / MB9-25903 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