Date: 20100428
Docket: IMM-2226-09
Citation: 2010 FC 452
Ottawa, Ontario, April 28, 2010
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
Joseph
Frantz NICOLAS alias
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application under subsection 72(1) of the Immigration and Refugee
Protection Act, S.C., 2001, c. 27 (the Act) for judicial review of a
decision of an immigration officer, Martine Beaulac (the
officer). Joseph Frantz Nicolas (the applicant) is challenging the officer’s rejection
of his pre-removal risk assessment (PRRA) application in a decision dated April
23, 2009.
* * * * * * * *
[2]
The
applicant is a citizen of Haiti. He was sponsored by his then wife and
became a permanent resident of Canada in 1988.
[3]
On
April 16, 1998, the applicant was convicted of four offences relating to drug
trafficking. He was sentenced to imprisonment for a term of 20 months.
[4]
On
September 4, 2007, the applicant was convicted of four offences relating
to drug trafficking and of possession of a firearm. He was sentenced to
imprisonment for a term of five years.
[5]
A
report concerning him was prepared under section 44 of the Act confirming that
he was inadmissible on the ground of serious criminality, under paragraph 36(1)(a)
of the Act.
[6]
The
applicant then made his PRRA application, which the officer rejected. He is
seeking judicial review of that decision.
[7]
It
should be noted that the applicant has HIV and is receiving treatment for that
disease.
* * * * * * *
*
[8]
The
officer rejected the applicant’s assertions in relation to three risk factors
that the applicant identified in his PRRA application. They were the cruel
treatment allegedly suffered in Haiti by criminals deported from this country,
the risk to the applicant’s life that would be created by the inhumane
conditions of detention and the fact that it is impossible to obtain medical
care in Haitian prisons, and the risk that the applicant would suffer
discrimination amounting to cruel and unusual treatment in Haiti.
* * * * * * *
*
[9]
The
following provisions of the Act are relevant in this case:
|
97. (1) A person in need of protection is a person
in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds
to exist, of torture within the meaning of Article 1 of the Convention
Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk is not caused by the
inability of that country to provide adequate health or medical care.
|
97. (1)
A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
|
112. (1) A person in Canada, other
than a person referred to in subsection 115(1), may, in accordance with the
regulations, apply to the Minister for protection if they are subject to a
removal order that is in force…
(3) Refugee
protection may not result from an application for protection if the person
…
(b) is determined to be inadmissible on grounds of serious
criminality with respect to a conviction in Canada punished by a term of
imprisonment of at least two years
|
112. (1)
La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet …
(3) L’asile ne peut être conféré au
demandeur dans les cas suivants :
…
b) il est interdit de territoire pour
grande criminalité pour déclaration de culpabilité au Canada punie par un
emprisonnement d’au moins deux ans …
|
|
113. Consideration of an
application for protection shall be as follows:
…
(d) in the case of an applicant
described in subsection 112(3), consideration shall be on the basis of the
factors set out in section 97 …
|
113. Il est disposé de la demande comme il suit :
…
d) s’agissant du demandeur visé au paragraphe
112(3), sur la base des éléments mentionnés à l’article 97 …
|
* * * * * * *
*
[10] This case
raises the following four issues, on which counsel for the parties were heard
at a full and complete hearing on December 16, 2009:
(1) Did the
officer err by assigning more weight to the statement by the Canadian migration
integrity officer in Port-au-Prince (the MIO) than to the
other documents submitted in evidence?
(2) Did the
officer err by disregarding the finding in Lavira v. Attorney General of the
United States, 478 F.3d 158 (3rd Cir. 2007), that conditions of detention
in Haiti could
constitute torture?
(3) Did the
officer give sufficient justification for her conclusion that the applicant’s
life would not be endangered by his conditions of detention?
(4) Did the
officer err by concluding that the discrimination the applicant would suffer in
Haiti did not
constitute cruel and unusual treatment?
[11] With the
exception of the third issue, they relate to the officer’s assessment of the
evidence and findings of fact. The applicable standard of review is therefore
reasonableness (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at paragraph 53). The issue of the sufficiency of the officer’s
reasons involves procedural fairness, and so the applicable standard of review,
in theory, is correctness. However, because there is no one form of reasons
that is acceptable, and the function of reasons is primarily to ensure that the
administrative decision is justified, transparent and intelligible, the
standard for the sufficiency of the reasons is in fact more similar to
reasonableness than to correctness.
* * * * * * *
*
(1) Did the officer
err by assigning more weight to the statement by the Canadian migratory
integrity officer in Port-au-Prince (the MIO) than to the
other documents submitted in evidence?
[12] The applicant
submits that the officer erred by basing her decision on the statement by the
MIO rather than on the evidence he submitted, some of which was more recent
than the statement. In his submission, that statement is not reliable because
it is vague, it was never subject to cross-examination and the MIO has not
personally monitored release procedures. In addition, he alleges that the MIO
is not reliable, because [TRANSLATION] “he was … for many years a law
enforcement officer responsible for removals from Canada and
personally handled the removal of certain criminals deported to Haiti”. The
applicant submits that there is a contradiction between the statement on which
the officer relied and another statement by the same MIO regarding the number
of Haitian citizens deported from Canada, and that the MIO never replied when
counsel for the applicant [TRANSLATION] “personally tried to contact [him] … to
clarify that information”.
[13] The applicant
quoted lengthy passages from the report by Michelle Karshan dated
March 23, 2009 (the Karshan report), stating that criminals deported to
Haiti, particularly those who have no family who can seek their release, may be
imprisoned for lengthy periods or even indefinitely. In the applicant’s
submission, the officer should have preferred that report to the statement by
the MIO, since that statement was not reliable.
[14] The respondents
submit that it was not up to the officer to assess the evidence and determine
what weight to assign to each piece of evidence submitted, relying on Diallo
v. The Minister of Citizenship and Immigration, 2007 FC 1063. The
respondents note that the officer discussed the Karshan report. In their
submission, the applicant’s argument amounts to asking the Court to substitute
its assessment of the evidence for the officer’s, and the Court does not have
that authority in a judicial review.
[15] Moreover,
they submit that the documentary evidence introduced by the applicant suffers
from the same problems as the problems the applicant ascribes to the MIO’s
statement: it too is vague and is not necessarily based on personal knowledge
of the facts (since Ms. Karshan has not resided in Haiti since 2004,
contrary to what the officer said). In addition, they submit that Alternative
Chance, the organization that Ms. Karshan works for, is not an objective
source. The respondents cite the decision of Justice Orville Frenette in Placide
v. The Minister of Citizenship and Immigration et al., 2009 FC 490 at
paragraph 19, in which he describes the Karshan report as [TRANSLATION] “biased
or non-objective opinion, in the nature of argument by counsel in a case”, and
reiterated that the officer could validly have preferred other documentary
evidence to the report.
[16] As a final
point, the respondents reject the applicant’s argument concerning the inability
to cross-examine the MIO and the bias of the MIO. They submit that rather than
presenting arguments to the PRRA officer, when informed of the receipt and the
content of the MIO’s statement, the applicant opted to introduce the Karshan
report in evidence. Since the applicant did not make this argument before the
officer, he should not be able to do so now.
[17] I am
essentially in agreement with the respondents: the applicant would like the
Court to reassess the evidence and reach a different conclusion from the
officer’s. The officer studied the Karshan report in detail, although she
discussed it under the heading of the threat to the applicant’s life if he were
imprisoned rather than the risk of arbitrary imprisonment.
[18] Notwithstanding
both parties’ efforts to discredit the MIO’s statement and the Karshan report,
respectively, the officer’s decision to rely on the former rather than the
latter is justified, transparent and intelligible. The officer identified
contradictions between various items in the documentary evidence, and since she
had to choose among the various sources available to her, she preferred the
statement by the Canadian officer in Haiti. This does not seem unreasonable to
me, even though another choice may also have been justifiable.
(2) Did
the officer err by disregarding the finding in Lavira, above, that
conditions of detention in Haiti could constitute torture?
[19] The applicant
submits that the officer erred by rejecting his argument that the detention of
a criminal deported to Haiti may constitute torture. That argument was
based on, inter alia, the judgment of the United States Court of Appeals
for the Third Circuit in Lavira, above.
[20] The applicant
argues that this judgment is applicable in this case because, as in Canada, the
United
States
has incorporated the provisions of the Convention Against Torture in its
national legislation. The applicant submits that his situation is similar to
the situation of the appellant in Lavira: both were convicted of drug
trafficking and are infected with HIV.
[21] The respondents
contend that there is no similarity between Lavira and the applicant’s
case because the appellant in Lavira was associated with the Aristide
regime and was at risk of being targeted because of that political affiliation,
which is not case for the applicant. The officer was not bound by that
decision, but in any event she did not conclude that conditions of detention
equivalent to those in Lavira could not amount to torture, she simply
concluded that the applicant had not proved that possibility in his personal
case.
[22] The decision
in Lavira was based on the conclusion that the Haitian authorities would
specifically target the applicant by subjecting him to inhumane conditions of
detention, in which his illness would subject him to severe pain and suffering,
even death (at page 170). The applicant is not arguing that he would be
personally targeted by the Haitian authorities.
[23] In Lavira,
the Court also left the door open to the possibility that even absent intent to
inflict pain and suffering on a prisoner, wilful blindness on the part of the
authorities could amount to intent, and so the treatment inflicted would amount
to torture. However, that conclusion has been criticized by other circuit
courts in the United States (see, for example, Pierre v. Gonzales, 502
F.3d 109 at page 118 (2nd Cir. 2007)), and reversed in Pierre v. Attorney
General of the United States, 528 F.3d 180 at page 189 (3rd Cir. 2008).
[24] In any event,
as the respondents point out, the officer could not have been bound by an
American decision, which could have only persuasive value. On that point, I
note that the Court in Lavira assigned considerable weight to the report
of Ms. Karshan, whom it described at page 163 as “an expert on
mistreatment in Haiti’s prisons”, and concluded that the applicant “would
lose 30 pounds in a matter of weeks” and his life would be in danger. The
officer did not assign much weight to the Karshan report, as she was free to do
in assessing the evidence, and further concluded that the applicant would
probably be detained for only a short period. Her decision not to follow Lavira
therefore does not seem to me to be unreasonable.
(3) Did the officer
give sufficient justification for her conclusion that the applicant’s life
would not be endangered by his conditions of detention?
[25] The applicant
submits that the officer did not give reasons for her conclusion that his life
would not be in danger in Haiti because, while she reviewed the
documentary evidence on the situation in that country, she failed to examine
his personal situation. The applicant renews his attack on the statement by the
MIO and reiterates his support for the conclusions in the Karshan report. In
his submission, the officer was wrong to conclude that the Karshan report was
contradicted by the documentary evidence, since while that evidence reported an
improvement in conditions in Haiti, it nonetheless showed that serious
problems persist. In addition, the officer allegedly did not explain why
she preferred the documentary evidence, which relates to general conditions in
Haiti, to the Karshan report, which was written specifically for the
applicant’s case.
[26] The
respondents reply that the Karshan report is also based on observations of
general conditions in Haiti. They reiterate that it was open to the officer to
prefer the documentary evidence in the record and the MIO’s statement to that
report, which was, in the opinion of Justice Frenette in Placide, above,
[TRANSLATION] “biased or non-objective opinion, in the nature of argument by
counsel in a case”.
[27] The
applicant’s argument is without merit. The officer took into account his
personal circumstances, including the fact that he would be removed on the
ground of criminality and the fact of his illness, but she concluded, having
regard to her assessment of general conditions in Haiti, that those
circumstances are not such as would endanger his life. That is exactly the same
approach as was taken in the Karshan report, which was also based on an
analysis of general conditions in Haiti, but which interpreted them differently
and concluded that in those circumstances there was a risk to the applicant’s
life.
[28] The officer
identified inconsistencies between the Karshan report and other evidence,
including the statement by the MIO, that she considered to be reliable. While
she admittedly did not expressly state that this was why she did not assign
much weight to the Karshan report, and her reasons might have been better
organized, the inference that no weight is assigned to evidence that
contradicts the evidence expressly stated to have been found to be reliable and
probative seems to me to be inescapable.
(4) Did the
officer err by concluding that the discrimination the applicant would suffer in
Haiti did not
constitute cruel and unusual treatment?
[29] The applicant
submits that the officer’s conclusion that discrimination against the
applicant, in particular the association between HIV and voodoo, does not
constitute cruel and unusual treatment is unreasonable. The applicant cites a
study on HIV/AIDS in Haiti that reported that the voodoo belief system holds
that a disease such as HIV is caused by a spell. He also notes that documents
that he submitted in evidence report that only 9.2 percent of infected
individuals receive retrovirals, and criminals are precluded from receiving
them. Since the applicant might also be denied essential drugs on
discriminatory grounds, he would be subjected to cruel and unusual treatment.
In addition, he submits that the officer made an unreasonable decision when she
concluded that the risk that the applicant could not find a job was shared by
the entire population of Haiti, when the applicant would be especially
stigmatized because of his illness and criminal record. The applicant relies on
passages in the documentary evidence, which indicate that the unemployment rate
is extremely high in Haiti, that jobs cannot be found even by people who are in
good health, and also that if people who are infected with HIV find a job they
conceal their illness for fear of losing the job.
[30] The
respondents note that under subparagraph 97(1)(b)(iv) of the Act,
the officer did not have to consider the risk resulting from Haiti’s inability
to provide the applicant with medical care. However, as the officer noted,
there are several organizations that work to assist prisoners and the sick in
Haiti. Moreover, they submit that discrimination in employment is not
[TRANSLATION] “a risk referred to in section 97 of the [Act] or a risk to
[the applicant’s] life”.
[31] The
applicant’s arguments concerning the connection between HIV and voodoo and
concerning the discrimination he would suffer in seeking employment are without
merit. The applicant fails to explain how the fact that in the voodoo belief
system AIDS is caused by a curse would be a threat to his life or would result
in cruel and unusual treatment being inflicted on him. As the respondents point
out, inability to find a job is not a risk factor to be taken into account in
the analysis under section 97 of the Act. Here again, this is not a risk
to life or a risk of cruel and unusual treatment.
[32] The argument
relating to the alleged discrimination against criminals in access to treatment
for HIV is more serious. First, while it is true that, in general,
discrimination does not constitute cruel and unusual treatment, the
discrimination alleged by the applicant results in a threat to his life.
Second, that threat is not direct and is rather the result of a general
inability of the country to provide adequate health care, although it would
affect the applicant more than an ordinary member of the public.
[33] In my
opinion, because discrimination is not a ground to be considered for the
purposes of section 97 of the Act, the question is what the ultimate reason
for the risk to an applicant’s life is. If, for example, it is threats made by
armed groups, whether they are motivated by discriminatory grounds (as in the
case of extremist racist groups) or not (as in the case of threats by drug
traffickers), then an applicant against whom such threats are made is entitled
to protection. If it is inadequate health care, then the Act precludes
consideration of that risk. Whether the proportion of people infected with HIV
in Haiti who have access to antiretroviral treatment is 9.2 percent or
30 percent, the figure given by Dr. Pierre Dongier (see the officer’s
decision at page 9), it seems unlikely that the applicant would have
access to the treatment he needs, even if there is no discrimination against
him, simply because of the inability of the Haitian government to provide
medical care for its population.
[34] The
applicant’s argument must therefore be rejected.
* * * * * * *
*
[35] Following the
hearing in this case on December 16, 2009, while my decision was under reserve,
the tragic earthquake of January 12, 2010, occurred in Haiti. The Court
then informed counsel for the parties that it wished to reopen the hearing on
April 20, 2010, at 9:30 in the morning, once they had filed written submissions
[TRANSLATION] “on the subject of the relevance and effect of that tragedy on
the disposition of the application for judicial review in question”.
[36] The parties
filed their submissions on time. However, only counsel for the respondents
appeared before the Court on April 20, 2010. The last-minute attempts by the
clerk, the usher and counsel for the respondents to locate counsel for the
applicant were unsuccessful. After waiting a half hour with no news from her,
the Court decided to consider the question of the earthquake in Haiti and
dispose of it based on the written submissions of counsel for the parties on
that subject. Counsel for the respondents consented to that approach and
reiterated that there was no question to be proposed for certification, as both
he and counsel for the applicant had done at the end of the hearing on December
16, 2009.
[37] Accordingly,
it appears from the applicant’s written submissions that he is essentially
reiterating the same risks of return as were rejected by the PRRA officer and
arguing that the tragic earthquake that devastated Haiti on January 12, 2010,
the extent of which has attracted the attention of the world, has merely
heightened the risk to which he is subject.
[38] The
respondents argue that because the earthquake occurred after the decision of
the officer that is in issue, she could not have taken it into account in her
decision, which, in an application for judicial review, may be considered only
on the basis of the facts before her. I agree.
[39] It is settled
law that judicial review of an administrative decision must be based solely on
the evidence available to the decision-maker (Isomi v. The Minister of
Citizenship and Immigration, 2006 FC 1394, at paragraph 6; Gallardo
v. The Minister of Citizenship and Immigration, 2003 FCT 45, at
paragraphs 7 and 8; Asafov v. The Minister of Employment and Immigration,
[1994] F.C.J. No. 713 (T.D.) (QL)).
[40] The extent of
a PRRA officer’s authority to grant protection is described in
sections 112 and 113 of the Act. The officer has a duty to receive all
evidence that may influence his or her decision, up to the date on which the decision
is made. The decision and jurisdiction of the PRRA officer are fixed in time,
in this instance on April 23, 2009, and are based on the allegations and
evidence before the officer on that date.
[41] The event of
the earthquake in Haiti took place nearly nine months after the decision of the
PRRA officer in issue, and accordingly it can have no impact on that decision.
[42] In conducting
a judicial review of the PRRA decision, the Court itself also may not have
regard to that later event. It is settled law that it is not the role of the
Court in that situation to assess fresh evidence and substitute its decision
for the decision of the PRRA officer.
[43] In Isomi,
above, my colleague Justice Simon Noël stated:
[10] I do not see how the factual situation described by the applicant or
the argument submitted could call into question the case law of this Court.
Under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, an application for judicial review of a decision is considered on
the basis of the evidence submitted to the decision-maker. Any addition to this
evidence would change the role of the judge hearing such cases. The judge would
be able to make a determination by taking new evidence into consideration,
which would effectively remove the judge from his or her role as a judge
hearing an application for judicial review. Moreover,
the applicant has an alternative at his disposition, namely section 165 of
the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), which allows the
filing of a new PRRA application and the use of “new” evidence in support of
this application. Accordingly,
I do not see how the Charter may be of any use, given the situation in this
case.
[Emphasis
added.]
[44] In this case,
therefore, I agree with counsel for the respondents, that it is in fact the
applicant who has the option and obligation to make a subsequent application
for protection under section 165 of the Regulations, for reconsideration of the
alleged risks of returning, or an application on humanitarian and compassionate
grounds. Although such applications do not stay the removal order, the Court
notes that because of recent conditions in Haiti, all removals to that country
have been temporarily deferred by the Canada Border Services Agency until further
notice (see Exhibit “A” to the affidavit of Hélène Exantus sworn on
March 17, 2010).
* * * * * * *
*
[45] For all these
reasons, intervention by the Court is not warranted and the application for
judicial review is dismissed.
[46] No question
will be certified.
JUDGMENT
The
application for judicial review of the decision of the pre-removal risk
assessment officer, Martine Beaulac, dated April 23, 2009, is dismissed.
“Yvon
Pinard”
Certified true translation
Susan Deichert, Reviser
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