Jacques v. Canada (Solicitor General), 2004 FC 1481

Date: 20041025

Docket: IMM-475-04

Citation: 2004 FC 1481

Ottawa, Ontario, the 25th day of October 2004

Present :          THE HONOURABLE MR. JUSTICE SIMON NOËL

BETWEEN:

                                                  REYNOLD JEAN JACQUES and

ROLANDE JEAN JACQUES DIOGENE

                                                                                                                                           Applicants

                                                                           and

                                             SOLICITOR GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a negative decision by a Pre-removal Risk Assessment Officer (PRRA and officer) dated December 2, 2003. The applicants are asking the Court:

(a)         to set aside the officer's decision finding that there is no danger for the applicants upon returning to Haiti;

(b)         to declare unconstitutional the decision-making process by which the Officer decides pre-removal risk assessments, since it is contrary to the Canadian Charter of Rights and Freedoms (the Charter): the PRRA officer is not an independent and impartial decision-maker. (No notice of constitutional question was served on the attorneys general as provided by section 57 of the Federal Court Act, R.S.C. 1985, c. F-7). Therefore that matter will not be addressed).

(c)         to order the Minister to not deport the applicants based on section 24 of the Charter; and,

(d)         to make any other order that the Court deems appropriate in the circumstances;

[2]                The respondent asked that the named respondent, the Minister of Citizenship and Immigration, be replaced by the Solicitor General of Canada.

ISSUES

(a)         Did the officer in this case err in law or in basing her decision on an erroneous finding of fact or in acting in another way contrary to the law in rendering her decision to the effect that there was no danger for the applicants in Haiti?

CONCLUSION

[3]                For the reasons stated below, I answer this question in the negative.

THE FACTS

[4]                The applicants, Reynold Jean Jacques (Mr. Jacques or the applicant ) and his wife, Rolande Jean Jacques Diogène (Mrs. Jacques or the female applicant) (collectively, the applicants), are citizens of Haiti. The couple has five children in Haiti between the ages of 4 and 14 years old and two Canadian children: a daughter born in May 2001 and a son born in December 2002.

[5]                The applicant, a businessman in Haiti, allegedly had a client by the name of Olivier Nadal (Mr. Nadal) between 1997 and the end of 1999. The applicant had containers of merchandise from abroad cleared through customs for Mr. Nadal. He then became responsible for logistics for Hydro-Québec International. He allegedly had a contract of service with the company for the period between September 30, 1998 and September 30, 2000, inclusively.

[6]                The applicant says that he never had problems before June 12, 2000, when he went to pick up his wife at work and a motorcycle followed them. The applicants went to the Pétion-Ville police station, near their home, where the commissioner told them that he could not do anything other than promise to investigate. The applicant then allegedly called a former school friend who had become a police officer and a spokesperson for the national police of Haiti, Jean Daddy Siméon (Mr. Siméon). Mr. Siméon came to join them at the station accompanied by bodyguards. He allegedly accompanied the applicants to their home where there were four hooded motorcyclists waiting for them. Seeing the police car, they fled. As Mr. Siméon chased after them without success, a decision was made to investigate.

[7]                The next day, after his investigation, Mr. Siméon told the applicant that Jean-Bertrand Aristide, then the President of Haiti (President Aristide) had ordered that he be killed because Mr. Nadal had sent a container that month containing propaganda by Mr. Nadal for the presidential elections and because the applicant was the person who had cleared the container through customs. The applicant told Mr. Siméon that he had no knowledge of the container being shipped, that he did not have the necessary customs papers in his possession and that he was not aware that Mr. Nadal wanted to run in the elections.

[8]                The applicants left Haiti on June 16, 2000, with the help of money loaned to them by Mr. Siméon, leaving their five children behind and arriving in Canada the same day. On June 28, 2000, they claimed refugee status before the Immigration and Refugee Board (IRB) which dismissed this claim on February 9, 2001, determining that the applicants were not credible. An application for leave for judicial review of that decision was dismissed on June 18, 2001.

[9]                Since their file was being studied by the PDRCC, the applicants applied for statutory stays. The PDRCC was converted into the PRRA program on June 28, 2001. The applicants also filed an application on humanitarian and compassionate grounds in March 2002.

[10]            The risks identified by the applicants are:

(a)         a threat to the life of the applicant and to the lives of his family members from President Aristide and his supporters based on his perceived political profile (relationship with Mr. Nadal) and his social group (businessman involved with [TRANSLATION] "white power and the country's bourgeoisie"); and,

(b)         a threat to the health of the female applicant because she is anaemic and the medical care that she would receive in Haiti is not as effective as the care in Canada;

[11]            The PRRA decision was made on December 2, 2003.

IMPUGNED DECISION

[12]            From the outset, the officer noted that the second risk identified above, i.e. the threat to the female applicant's health, is one of the exclusions provided under paragraph 97(1)(iv) of the Immigration and Refugee Protection Act (IRPA): "the risk is not caused by the inability of that country to provide adequate health or medical care". Further, this risk is not related to any one of the five grounds of the Convention (section 96 of the IRPA).

[13]            The officer determined that the evidence filed by the applicants since the IRB's dismissal of their refugee claim IRB was not sufficient to decide that there was a risk for them to return to Haiti. There was still no satisfactory explanation regarding why the applicant's PIF did not state that he had had problems before June 12, 2000, the date of the motorcycle chase. The female applicant's curriculum vitae was not assigned very much probative value because it was a document prepared in its entirety by the female applicant and was nothing more than a confirmation that she was working at that time. An article from the internet dated August 4, 2003, stated that Mr. Siméon had made a refugee claim in Canada, but does not establish anything regarding the applicant's personal fear for his life or that there was a connection between Mr. Siméon and the applicant. Finally, the applicants submitted articles regarding the socio-political situation in Haiti, but these articles, even if they are objective evidence, do not establish a connection with the applicant, his family and a personal risk for them in their native country. Another article with the picture of their daughter standing in front of a burned down house was not accepted by the officer because even if it was the applicants' daughter appearing in the picture, there was nothing establishing that the house set on fire was the house where their daughter was living (according to the applicant, the house of the applicant's mother-in-law), or anything establishing that the applicant's children had been targeted.

[14]            The officer, having made a negative credibility finding regarding the applicant's story about Mr. Nadal and the fact that he wanted to run against President Aristide, also found that it was highly debatable that in 2000 Mr. Nadal would have sent a container to the applicant containing election propaganda, because the applicant had stopped working for Mr. Nadal in 1998 or 1999. Since the officer determined that the connection between the applicant and Mr. Nadal was weak, she did not believe the applicants' story and denied their request to not be removed to Haiti:

[TRANSLATION]

After reviewing all of the evidence, I am not satisfied that the applicant and his family are personally targeted by Aristide and his supporters. The events (fire at his mother-in-law's house, vandalism of the applicant's house and the destruction of his office, fire at his sister-in-law's house) that the applicant alleged were the result of the persecution or the threat to his life and the lives of his family members by Aristide because of his relationship with Nadal - i.e. his perceived political profile - were not.

Further, the allegations by the applicant's then-counsel to the effect that the applicant and his family are at risk in Haiti since Aristide and his supporters condemn the applicant for his "implication with white power and the country's bourgeoisie" is not corroborated by the documentary evidence. Furthermore, the applicant did not provide any other explanations or evidence on that point.

(See the PRRA decision at pages 13 and 14).

PARTIES' ARGUMENTS

The applicants

[15]            The applicants agree that the standard of proof for an application for judicial review of a decision by a PRRA officer is very high and that the Court must not intervene unless it is persuaded that the officer exercised his or her discretion unreasonably or in bad faith. The applicants submit three arguments, inter alia.

[16]            First, the applicants claim that the officer failed to fulfill her obligation of procedural fairness and erred in law in failing to give the applicants a hearing while certain evidence raised a significant question regarding the applicants' credibility. According to the applicants, the negative decision by the officer was not based on the sufficiency of the evidence filed, but rather on the credibility of that evidence and that therefore the applicants were entitled to an interview with the officer for a risk assessment. Rule 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227, reads as follows:

Since the connection between the applicant and Mr. Nadal was central to the applicants' claim for protection, the officer should have held a hearing in order to better judge the applicants' credibility on that point.

[17]            Second, the applicants claim that the officer erred several times in not assigning any value to the evidence submitted by the applicants such as the evidence referred to above (paragraph 13). For example, the applicant claims that the connection between Mr. Siméon and the applicant is clear, and not having disputed the fact that Mr. Siméon had helped the applicants, the officer could not then say that the evidence regarding the persecution endured by Mr. Siméon established nothing with respect to the persecution endured by the applicant. The benefit of the doubt should have been given to the applicant. According to the applicant, the officer also erred in not accepting the letters written by Mr. Nadal for the applicant, confirming the professional relationship between the two men. There was also a great deal of documentary evidence submitted by the applicant establishing that there were human rights violations in Haiti. Those documents were not consulted by the officer (according to the applicant) for the purposes of her decision.

The respondent

[18]            The respondent argues that certain documents (those included in Exhibit C of Mr. Jacques' affidavit) should be withdrawn from the applicants' record. Those documents were not in the officer's record when she made her decision and accordingly cannot be introduced at the judicial review stage. According to the respondent, this Court must determine the reasonableness of the decision based only on the record that the officer had in her possession at the time that her decision was made. Further, the respondent argues that if the Court were to decide to accept the new evidence as submitted by the applicants, it must also consider recent events, for example, the fact that President Aristide has been stripped of his functions and went into hiding elsewhere. Therefore, the applicants no longer have anything to fear from him and their allegations regarding risks in Haiti are now unfounded. Finally, the respondent is asking for costs against the applicants's counsel because this is not the first time that he has filed new evidence.

[19]            The respondent claims that the decision is well-founded: The officer does not sit on appeal of the IRB's decision, it can consider all of the applicants's record, including decisions made by the IRB regarding them. According to the respondent, it was the applicants' responsibility to specify in their PRRA application all of the problems raised in the IRB's decision; on that point, the applicants did not meet their burden. They alleged the same facts with the same explanations without bothering to respond to the credibility problem, of which they were aware. The officer was not obliged to give the applicants an interview and she did not have to confront them with the credibility issues in this case. In any case and as the decision indicates, the respondent is of the opinion that the officer assessed the allegations just the same and did not simply stop at the IRB's findings.

[20]            With respect to the fact that the officer did not assign much probative value to most of the evidence submitted by the applicants, the respondent believes that it was up to the officer to decide the weight and credibility to assign to the evidence, and that her findings on credibility were reasonable. According to the respondent, the documentary evidence does not establish a connection between the events in Haiti and the applicants, or that their lives would be at risk if they were to return to Haiti.

ANALYSIS

Standard of review

[21]            PRRA decisions must be assessed in accordance with a very high standard of review and the Court must not interfere unless the decision is unreasonable. However, I do not believe that it is necessary to effect a pragmatic and functional analysis to answer that question since, given the facts in this case, I arrive at the same conclusion even if I apply the standard of reasonableness simpliciter: [2003] 1 S.C.R. 226=">See the remarks of Chief Justice McLachlin in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at paragraph 41, where she states that "when applying a standard of reasonableness simpliciter, the reviewing judge's view of the evidence is beside the point; rather, the reviewing judge should have asked whether the Commission's conclusion on this point had some basis in the evidence" See also Linaogo v. Canada (Solicitor General), [2004] F.C.J. No. 336 at paragraph 5 (F.C.).

Procedural fairness

[22]            As the respondent argues, a PRRA officer does not sit on appeal or in judicial review and is therefore entitled to trust the IRB's findings in the absence of new evidence.

[23]            It is clear that the judicial review of a decision must be done while keeping in mind only the documents submitted to the decision-maker; otherwise, it is not a judicial review. A court cannot accept new documents unless they could not have been obtained earlier and that they are really "new" in and of themselves. It is therefore an exceptional situation. Furthermore, if the applicants so desire, they can make a new application with this evidence under section 165 of the IRPA.

[24]            The new documents submitted are documents that could have been submitted at the time of the review by the PRRA officer. Therefore, they are not new documents in and of themselves. Therefore, the documents will not be considered. With respect to the request for costs against the applicants' counsel, I do not intend to grant it.

[25]            With regard to the application of rule 167 of the Immigration and Refugee Protection Regulations, supra, it does not create a right to a hearing when the applicant's credibility is at issue. However, the officer may consider the possibility of a hearing if credibility is to be determined. In the case under review, the officer did not only rely on the IRB's decision, but also made her own determinations regarding the applicant's credibility. There was no reason to contemplate such a hearing. Rule 167 of the Regulations is simply intended to specify certain factors that can be taken into consideration when such a situation arises.

Probative value assigned to the evidence

[26]            The credibility and the probative value to be assigned to the evidence is to be determined by the PRRA officer. If the tribunal's findings are reasonable in light of the evidence, there is no reason for the Court to intervene. (See Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732.) However, the tribunal must not be "over-vigilant in its microscopic examination of the evidence of persons who . . . testify" (See Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.).)

[27]            The applicants' counsel attempted to persuade me that the determinations made by the officer were erroneous and unreasonable. I reviewed them and I noted that they were justified in light of the evidence as it was submitted. The applicants do not agree with them, but it is not this Court's place to intervene in a decision when the determinations in that decision are consistent with the evidence. The opinion and the determination of the PRRA officer must prevail.

[28]            Counsel were invited to submit questions for certification but none were proposed.

CONCLUSION

[29]            Since there is nothing unreasonable in the officer's decision, this application for judicial review must be dismissed.

ORDER

THE COURT ORDERS THAT:

-           This application for judicial review be dismissed and no question be certified.

-           The style and cause of this matter must be amended to replace the respondent Minister of Citizenship and Immigration with the Solicitor General of Canada.

                                                                                       "Simon Noël"                

                                                                                                   Judge                       

Certified true translation

Kelley A. Harvey, BCL, LLB

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET :                                                      IMM-475-04

STYLE OF CAUSE:                                       REYNOLD JEAN JACQUES ET AL.

                                                                                           Applicants

and

SOLICITOR GENERAL OF CANADA

                                                                                        Respondent

PLACE OF HEARING:                                 Montréal, Quebec

DATE OF HEARING:                                   October 20, 2004

REASONS FOR ORDER:                           The Honourable Mr. Justice Simon Noël

DATE OF ORDER:                                       October 25, 2004

APPEARANCES :

Stewart Istvanffy                                                            FOR THE APPLICANTS

Steeve Bell                                                                    FOR THE RESPONDENT

SOLICITORS OF RECORD :

Stewart Istvanffy                                                            FOR THE APPLICANTS

Montréal, Quebec

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec